ROSATI v. COLELLO et al
MEMORANDUM AND ORDER THAT DEFENDANTS MOTION FOR SUMMARY JUDGMENT IS GRANTED; ETC.. SIGNED BY HONORABLE STEWART DALZELL ON 4/2/15. 4/3/15 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SGT. MICHAEL COLELLO, et al.
April 2, 2015
We consider here the defendants’ motion for summary judgment. Plaintiff Patricia Rosati
brings her claims under Title VII, 42 U.S.C. §§ 2000e et seq., and the Pennsylvania Human
Relations Act, 42 P.S. §§ 951-963 (“PHRA”), alleging employment discrimination on the basis
of sex, a hostile work environment, and retaliation for protected Title VII activity. Defendants
are Sergeant Michael Colello and Captain Leonard Ditchkofsky of the Philadelphia Police
Department and the City of Philadelphia.
In Count I -- filed under Title VII against the City of Philadelphia -- Rosati alleges that
she was discriminated against on the basis of comments Sgt. Colello allegedly made about her
children and pregnancy, Sgt. Colello’s assignment of extra responsibilities to her, an
investigation into an incident from May 2, 2012, and a work reassignment. Complaint at ¶ 49.
Rosati alleges that she engaged in protected activity under Title VII by: reporting the May 2,
2012 incident, filing a formal complaint on May 30, 2012 with the Pennsylvania Human
Relations Commission (“PHRC”), calling Internal Affairs on September 16, 2013, and filling out
a complaint form on March 6, 2014 to add retaliation claims to her prior PHRC complaint. Id. at
¶ 51. Rosati alleges she was retaliated against by: being reassigned to One Squad on May 29,
2012, the destruction of her August 26, 2013 request for maternity leave, the return of her
restricted duty request to her for corrections in March of 2014, the receipt of a counseling form
about not following the chain of command, and the inclusion of that counseling form in her 2013
performance evaluation. Id. at ¶ 52. In Count II -- filed under the PHRA against the City of
Philadelphia, Sgt. Colello, and Capt. Ditchkofsky -- Rosati alleges the same misconduct,
protected activity, and retaliation. Id. at ¶¶ 63-66.
Defendants moved for summary judgment, and Rosati opposes their motion.
Standard of Review
Fed. R. Civ. P. 56(a) provides:
A party may move for summary judgment, identifying each
claim or defense -- or the part of each claim or defense -- on which
summary judgment is sought. The court shall 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. The court should state on the record the reasons for
granting or denying the motion.
A party moving for summary judgment bears the initial burden of informing the district
court of the basis for its argument that there is no genuine issue of material fact by “identifying
those portions of the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations
omitted). If the moving party meets this initial burden, Fed. R. Civ. P. 56 then obliges the nonmoving party to show, via submissions beyond the pleadings, that there are genuine factual
issues for trial. Id. at 324.
There is a genuine issue of material fact only when there is sufficient evidence such that a
reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986) (explaining further that a mere scintilla of evidence is insufficient).
Material facts are those that would affect the outcome of the case under the governing law. Id. at
248. We may not make credibility determinations or weigh the evidence, and we must draw all
reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Amour v. County of Beaver, 271 F.3d 417, 420 (3d Cir. 2001).
Our function is to determine whether there is a genuine issue for trial, and we may not prevent a
case from reaching a jury simply because we favor one of several reasonable views of the
evidence. Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Anderson, 477 U.S. at
249). However, a non-moving party cannot rely on unsupported assertions, speculation, or
conclusory allegations to avoid the entry of summary judgment. Celotex, 477 U.S. at 324.
Patricia Rosati has spent most of her career in the 8th Police District1 in the City of
Philadelphia since becoming a police officer in 1996. Joint Stip. at ¶¶ 20-21. After working as a
patrol officer and then COMPSTAT officer, Rosati became a Crime Prevention Officer in 2011,
a position she held for about two and a half years. Id. at ¶¶ 23-26. Capt. Ditchkofsky became the
commanding officer at the 8th District in February of 2012. Id. at ¶¶ 2, 9. Sgt. Colello was the
Administrative Sergeant in the 8th District from early 2008 through mid-2012. Id. at ¶¶ 10, 1618.
From 2005 through 2014, Rosati took multiple leaves of absence under the Family
Medical Leave Act and frequently worked on restricted duty largely as the result of pregnancy or
The 8th District has five separate platoons: One, Two, Three, Five, and Seven. Joint
Stip. at ¶ 50. One, Two, and Three Platoons each have three squads, and officers assigned to
those squads perform mainly shift work. Id. at ¶ 51-52. Five and Seven Platoons are special
assignments with many different shifts. Id. at ¶ 53.
pregnancy-related conditions. Id. at ¶¶ 27-49. The relevant period for this action began in
February of 2012. We recount the facts from Rosati’s perspective as the non-moving party.
In February of 2012, Rosati asked Sgt. Colello for permission to take a few hours off to
attend a doctor’s appointment, and Sgt. Colello responded by asking if she “was going to get
fixed.” Rosati Dep. at 102:9-12. Sgt. Colello made this comment in the 8th District’s Operations
Room with three or four people present, although Rosati is not sure who was there. Id. at 104:17. Rosati received the time off she requested. Id. at 109:21-24. Rosati told Lieutenant Sue Farley
about the “get[ting] fixed” comment about a week after it happened. Id. at 111:14-112:1. Rosati
did not tell anyone else about the comment and did not document it. Id. at 112:5-14. That same
month, when Rosati told Sgt. Colello that she was pregnant, he asked if she “was keeping the
baby.” Id. at 102:20-22. Rosati believes this comment was made within the same week as the
first comment. Id. at 108:2-4. Rosati also says Lt. Farley told her that Sgt. Colello “made
comments on a weekly basis about” her shifts and childcare needs. Id. at 103:2-7. Rosati is not
aware of any other specific comments made about her.2 Id. at 103:8-9.
On February 10, 2012, Rosati was placed on restricted duty because of pregnancy-related
restrictions. Joint Stip. at ¶ 38. Three months later, on May 2, 2012, there was an incident
between Rosati and Sgt. Colello in the kitchen attached to the 8th District’s Operations Room.
Id. at ¶ 54. Rosati walked into the 8th District’s kitchen to announce that her daughter had
received an award for student of the month. Rosati Dep. at 93:5-14. Sgt. Colello and Officer Bob
Sweeney were both in the room, and Sgt. Colello said, “Let me guess. You need a day off.” Id. at
93:13-16. Sgt. Colello called Rosati “a fucking scammer,” id. at 93:22-24, and made nepotism-
Sgt. Colello denied ever making these or similar comments. Colello Dep. at 115:16-22.
For the purposes of summary judgment, defendants have conceded to Rosati’s version of the
facts to show that her claims fail as a matter of law. MSJ at 29.
related accusations. Id. at 93:23-94:3. Officer Sweeney left the room. Id. at 94:5-6. After the
door was shut, Rosati asked Sgt. Colello if he had a problem with her. Id. at 94:11-13. Sgt.
Colello said that once their current female lieutenant was replaced by a male lieutenant Rosati
was “going to be fucked, because [she was] going [to] have four kids running around and [was]
going to be pushing a car.” Id. at 94:15-19. According to Rosati, “pushing a car” means an
assignment to a line squad position rather than an administrative one. Id. at 100:2-3.3
After the incident, the parties agree that on May 25, 2012 Sgt. Colello requested that
disciplinary action be taken against Rosati for insubordination. MSJ at ¶ 68; Pl. Resp. to Def.
Facts at ¶ 68 (admitting those facts). Capt. Ditchkofsky never finished his investigation because
Rosati “went out sick and never returned to the 8th District.” MSJ at ¶ 74; Pl. Resp. to Def. Facts
at ¶ 74 (admitting those facts). However, in February of 2013 Lieutenant Monaghan conducted
several interviews of witnesses to the incident. See Pl. Resp. Ex. 17. There are no allegations
regarding any consequences from this investigation.
Around the same time, Capt. Ditchkofsky did not grant Rosati’s request to work one
week a month on a night shift, but did permit another male officer to do so. Pl. Resp. at 14.
According to Capt. Ditchkofsky, Rosati wanted to change her shift to include one week of night
work because he had assigned Officer Rudy Muller, the Community Relations Officer, to that
schedule. Ditchkofsky Dep. at 106:10-18. Capt. Ditchkofsky explained that the shifts -- which
the City predetermined -- did not permit such a schedule for an officer in the Crime Prevention
position. Id. at 106:23-107:9. Capt. Ditchkofsky thus did not permit Rosati to do night work
Sgt. Colello has a different account of this interaction. In his account, he did not make
the alleged comments about Rosati being a “scammer” or “pushing a car,” and avers that Rosati
became insubordinate. Again, for the purposes of demonstrating that Rosati’s claims fail as a
matter of law, defendants have conceded to her version of events.
shifts because of her position as a Crime Prevention Officer and because of her pregnancyrelated work restrictions. Id. at 107:9-14. The schedule permitting one week of night work was
designed for Community Relations Officers to permit them to attend community groups’
meetings. Id. at 108:10-109:1.4 Capt. Ditchkofsky further explained: “There’s no one week of
night work for a Crime Prevention officer. It’s only steady day work. That’s all the City allowed.
And even if there was a week of night work, she couldn’t have worked it because she wasn’t
allowed to go on the street. She was pregnant.” Id. at 109:7-14. Capt. Ditchkofsky could not
assign Rosati to night work because “part of her restrictions was she wasn’t supposed to work
shifts” other than day work. Id. at 111:8-112:4. Capt. Ditchkofsky explained that he knew Rosati
wanted to work a week of night work to accommodate baby-sitting, but that he “didn’t need her
on night work. Her restrictions prevented her from working night work.” Id. at 112:14-19.
During her time in the 8th District, Rosati states that Sgt. Colello assigned her, and none
of the other members of her squad, all of whom were male, certain tasks that fell to him after one
of the District's lieutenants became ill. Rosati Dep. at 333:7-23. Rosati says these assignments
included fifteen monthly reports and four or five weekly reports. Id. at 335:5-11. Rosati says,
based on working near the other officers and having conversations with them, that it was not
possible that her fellow officers received assignments she was unaware of. Id. at 338:3-339:3.
Rosati alleges this work should have been done by a supervisor, not a police officer. Id. at 339:711. Rosati alleges that Sgt. Colello passed all such assignments to her. Id. at 339:17-23.
Corporal Deborah Haworth submitted an affidavit. MSJ Ex. 7. Corporal Haworth serves
in the Research and Planning Unit, which develops shift schedules for different positions. Id. at
¶¶ 1-4. The affidavit included two shift schedules, designated for PCROs in the 2012 calendar
year. MSJ Ex. 7 at 2-3. The schedule shows, consistent with Capt. Ditchkofsky’s testimony, that
Community Relations Officers had a schedule that included one week of night work per month.
On May 29, 2012 Rosati was reassigned to One Platoon, but, due to her restricted duty
status and pending maternity leave, she would continue to work in the Operations Room on the
day shift, as she was already doing. Joint Stip. at ¶ 55.5 After learning of this reassignment, she
asked to speak with Capt. Ditchkofsky regarding “on-going problems” with Sgt. Colello. Id. at ¶
On May 30, 2012, Rosati filed a charge with the Pennsylvania Human Relations
Commission. Joint Stip. at ¶ 58; Joint Ex. 19.
Rosati gave birth to her fourth child in August of 2012. Joint Stip. at ¶ 38. Several
months later, on February 25, 2013, Rosati was placed on restricted duty because of pregnancyrelated restrictions. Id. at ¶ 39. Rosati gave birth to her fifth child in August of 2013. Id. at ¶ 40.
On or about August 26, 2013, Rosati’s husband submitted a maternity leave request on
her behalf following the birth of their fifth child. Id. at ¶ 59. The request “became lost during the
approval process.” Id. at ¶ 60. Rosati filed a complaint with the Police Department’s Internal
Affairs Bureau alleging that Capt. Ditchkofsky deliberately threw out or destroyed the request in
retaliation for filing the PHRC charge against Sgt. Colello. Id. at ¶ 61. The Internal Affairs
Bureau investigated and did not sustain or substantiate that charge against Capt. Ditchkofsky. Id.
at ¶ 62. Rosati’s maternity leave was eventually approved. Rosati Dep. at 135:4-9.
Rosati attached the Reassignment Memorandum. Pl. Resp. Ex. 15. The Memorandum,
dated May 29, 2012, explained that she would be assigned to One Platoon effective May 30,
2012. Id. The Memorandum continued, “Due to your restricted duty status and pending maternity
leave, you will continue to work Monday-Friday, 8A-4P, assigned to the operations room.” Id.
Rosati “feels the reassignment was discriminatory because since being assigned to the 8th District
Ditchkofsky had not involuntarily reassigned any other officers in 5-squad.” Pl. Statement
Additional Facts at ¶ 102. Rosati also says she heard from other officers that some male officers
were not reassigned after they had been accused of insubordination. Id. at ¶¶ 103-07.
On January 27, 2014, Rosati requested restricted duty status from February 10, 2014 until
April 4, 2014 due to an ongoing medical condition, and on February 12, 2014 she was placed on
restricted duty. Joint Stip. at ¶¶ 41-42.
Rosati filed a second complaint with the PHRC on March 5, 2014. Pl. Resp. at 5. While
the record does not include this complaint, Rosati attached correspondence from the PHRC
indicating that she filed paperwork with them on that date. Pl. Resp. Ex. 5.
On March 17, 2014 Rosati submitted a request, with a doctor’s note, to extend her
restricted duty status. Joint Stip. at ¶ 43; Joint Ex. 14. On March 29, 2014, Rosati’s thensupervisor, Sergeant Thomas Sileo, directed Rosati to resubmit her request to correct certain
deficiencies. Joint Stip. at ¶ 44; Joint Ex. 15. Sgt. Sileo’s memorandum explained the proper
procedures for requesting an extension of restricted duty status and instructed that Rosati’s
request was not approved because: (1) “Police Commissioner” was misspelled, (2) the subject
line was not correctly designated, (3) the request did not include specifics such as her diagnosis,
prognosis, and projected date of return to active duty, and (4) the physician’s note was too vague
regarding her specific restrictions and had other technical deficiencies. Joint Ex. 15 at ¶¶ 1-3.
The memorandum also explained that Rosati had to resubmit the corrected request through the
chain of command, which started with Sgt. Sileo. Id. at ¶ 3.
On March 31, 2014, Rosati submitted a corrected request and doctor’s note. Joint Stip. at
¶ 45; Joint Ex. 16. That request was approved. Joint Stip. at ¶ 46. While on restricted duty from
February of 2013 until September 5, 2014, Rosati was detailed to the Differential Police
Response Unit. Id. at ¶¶ 46-47.
On April 3, 2014, Sgt. Sileo and Lieutenant Labrice issued Rosati a counseling form
regarding her request to extend her restricted duty status, and Rosati stated in writing her
disagreement with it. Joint Stip. at ¶ 63. Sgt. Sileo issued the counseling form for “Not
Following the Chain of Command.” Joint Ex. 24. The form explained that despite Sgt. Sileo’s
prior conversations with Rosati and provision of forms explaining the procedure for submitting
correspondence up the chain of command, Rosati circumvented the chain of command. Id. The
counseling form advised Rosati that she was required to follow the chain of command and failure
to do so in the future might subject her to discipline. Id.
On April 16, 2014, Rosati was given a performance report for the 2013 calendar year,
signed by Sgt. Sileo as “rater” and Lt. Labrice as “reviewing officer.” Joint Stip. at ¶ 64; Joint
Ex. 25. Her performance was rated as satisfactory, but her report included reference to the
counseling form, and Rosati asked to discuss the report with the reviewing officer. Joint Stip. at ¶
64. That same day, Rosati submitted a memorandum to the Commanding Officer of Northeast
Police Division requesting a meeting to discuss her 2013 performance report. Id. at ¶ 65. On
April 21, 2014, Rosati received a new performance report for the 2013 calendar year, this time
signed by Sgt. Sileo as “rater” and Capt. Ditchkofsky as “reviewing officer,” with her
performance marked as satisfactory and the counseling form comments removed. Id. at ¶ 66;
Joint Ex. 27.
As of September 8, 2014, Rosati has been detailed from the 8th District to the mobile
communications unit, and as of November of 2014 was on restricted duty for pregnancy-related
reasons. Joint Stip. at ¶¶ 48-49.
Defendants move for summary judgment alleging that Rosati has failed to exhaust her
administrative remedies for conduct occurring after May 30, 2012, and arguing that even if she
has exhausted her administrative remedies as to all claims, they are still entitled to summary
judgment because Rosati cannot establish a prima facie case for discrimination, hostile work
environment, or retaliation. MSJ at 29. As noted, Rosati opposes their motion.
Exhaustion of Administrative Remedies
Defendants argue that Rosati has failed to exhaust her administrative remedies for her
claims under the PHRA that occurred after May 30, 2012. MSJ at 25. On May 30, 2012, plaintiff
filed a formal complaint with the PHRC alleging that, as a result of discrimination on the basis of
her sex and pregnancy, she had been subjected to harassment and forced transfer. Pl. Resp. Ex. 2.
Plaintiff dual-filed this charge with the Equal Employment Opportunity Commission ("EEOC").
Id. at ¶ 31. This charge was given two case numbers -- PHRC Case No. 201106020 and EEOC
No. 17F-2012-61393. Pl. Resp. Ex. 2. Rosati received right-to-sue letters from the PHRC on
May 30, 2013 and the EEOC on October 16, 2014. Pl. Resp. at 5 & Exs. 3, 13. The status of
Rosati’s March 5, 2014 complaint to the PHRC is unclear. Rosati filed suit on April 25, 2014.
“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).
The status of Rosati’s most recent PHRA complaint remains unclear. But since Rosati
alleges a variety of intertwined discrimination and retaliation claims related to her work
assignments and pregnancies, we will find that her post-May 20, 2012 claims fall within the
scope of the prior complaint and consider the merits.
Although Pennsylvania courts interpreting Pennsylvania law are not bound by federal
interpretations of parallel federal statutes, courts generally interpret the PHRA in accord with
Title VII. Kelly v. Drexel Univ., 94 F.3d 102, 104-05 (3d Cir. 1996); Gomez v. Allegheny
Health Servs., Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995). We will therefore conduct one
analysis under both Title VII and the PHRA.
A plaintiff alleging disparate treatment can prove her claim through either direct or
circumstantial evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-101 (2003). We evaluate
those claims in accordance with the burden shifting analysis set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1972), and its progeny. A plaintiff in a Title VII action bears the initial
burden of establishing a prima facie discrimination case, and, if the plaintiff succeeds, the burden
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the complained-of
action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Should the
defendant carry that burden, the plaintiff then has the opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered were pretextual. Id. at 253. The existence of a
prima facie case of employment discrimination is a question of law for the court to decide.
Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
To establish a prima facie case of discrimination, a plaintiff must show that she (1)
belongs to a protected class, (2) was qualified for the position, (3) was subject to an adverse
employment action despite being qualified, and (4) her employer acted under circumstances
raising an inference of discriminatory action. Id. Though the McDonnell Douglas presumption
shifts the burden of production to the defendant, the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
To survive summary judgment after an employer articulates a legitimate, nondiscriminatory reason for its action, a plaintiff must point to direct or circumstantial evidence
from which a fact-finder could reasonably 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. Simpson v. Kay Jewelers, 142
F.3d 639, 644 (3d Cir. 1998) (quoting Fuentes v. Perskie, 32 F.2d 759, 764 (3d Cir. 1994)).
An adverse employment action is one that is serious and tangible enough to alter an
employee’s compensation, terms, conditions, or privileges of employment. Cardenas v. Massey,
269 F.3d 251, 263 (3d Cir. 2001). “Minor actions, such as lateral transfers and changes of title
and reporting relationships, are generally insufficient to constitute adverse employment actions.”
Langley v. Merck & Co., Inc., 186 F. App’x 258, 260 (3d Cir. 2006) (non-precedential). But see
Zelinski v. Pennsylvania State Police, 108 F. App’x 700, 705-06 (3d Cir. 2004) (nonprecedential) (explaining that a transfer resulting in neither lost pay nor rank may sometimes
constitute an adverse employment action if the new assignment was less desirable).
Unnecessary derogatory comments do not rise to the level of adverse employment
actions. Middleton v. Deblasis, 844 F. Supp. 2d 556, 566 (E.D. Pa. 2011). Investigations,
separate from any negative consequences that may result from them, do not generally constitute
adverse employment actions. Henry v. City of Allentown, 2013 WL 6409307, *7 (E.D. Pa. Dec.
9, 2013) (Schmehl, J.); see also Boandl v. Geithner, 752 F. Supp. 2d. 540, 564 (E.D. Pa. 2010)
(finding that a referral for an investigation that resulted in no ramifications for the employee did
not constitute an adverse employment action).
Because Rosati did not suffer any adverse employment actions, she cannot make a prima
facie showing of discrimination on the basis of her sex or pregnancy.
Sgt. Colello’s comments to Rosati in February of 2012 about whether she was “getting
fixed” or “keeping the baby” are not adverse employment actions. Gratuitous derogatory
comments do not rise to the level of adverse employment actions, which are serious and tangible
enough to alter an employee’s compensation, terms, conditions, or privileges of employment.
Cardenas, 269 F.3d at 263; Middleton, 844 F. Supp. 2d at 566. As rehearsed, the existence of a
prima facie case of employment discrimination is question of law for the court to decide. Sarullo,
352 F.3d at 797. These comments, and those made during the May 2, 2012 incident, are
insufficient as a matter of law to state a prima facie case for employment discrimination.
Similarly, the investigation into the May 2, 2012 incident does not constitute an adverse
employment action. There are no allegations of negative consequences from the investigation.
Without negative consequences, the investigation alone is not an adverse employment action.
Sgt. Colello’s assignment of extra responsibilities to Rosati was also not an adverse
employment action. As stated, adverse employment actions are serious and tangible enough to
alter an employee’s compensation, terms, conditions, or privileges of employment. There are no
allegations that these assignments from Sgt. Colello materially altered the terms or conditions of
Rosati’s employment. Nor do Sgt. Colello’s actions raise the inference of discrimination on the
basis of sex. A plaintiff cannot rely on unsupported assertions, speculation, or conclusory
allegations to avoid the entry of summary judgment. Celotex, 477 U.S. at 324. Rosati’s
assertions that she alone received certain extra assignments from Sgt. Colello, and that he
specifically assigned them to her because of her sex, are unsupported and conclusory. Beyond
the pleadings, Rosati provides only her deposition testimony to support this claim, and her
deposition testimony relies on hearsay -- that is, what other police officers told her their work
assignments were. While we view the evidence in the light most favorable to the non-movant, we
are not required to take into account evidence that would not be admissible at trial. See Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 296-97 (3d Cir. 2014).
Capt. Ditchkofsky’s refusal to permit Rosati to work one week of night work per month
does not constitute an adverse employment action. Rosati’s position as a Crime Prevention
Officer did not entitle her to work on a schedule that is designated specifically for Community
Relations Officers. Refusing to change her work schedule under those circumstances is not an
adverse employment action -- Rosati’s terms and conditions of employment remained the same
after the refusal of the request. Even if, based on Capt. Ditchkofsky’s discretion to alter certain
scheduling, his refusal to change her schedule was an adverse employment action, the defendants
have offered legitimate, non-discriminatory reasons for the action: Capt. Ditchkofsky did not
need an additional officer for night work and Rosati’s work restrictions precluded her from doing
night work. Other than her unsupported opinion that Capt. Ditchkofsky could have changed her
schedule if he wanted to, Rosati does not provide any evidence from which a reasonable juror
could draw that conclusion, and we are not required to grant the non-moving party the benefit of
unreasonable inferences. See GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 210-11 (3d
Cir. 2001) (rejecting an unreasonable inference of motive in light of an alternative, reasonable
inference from the same facts).
Nor was Rosati’s reassignment to One Platoon an adverse employment action. Minor
actions, such as lateral transfers and changes of title and reporting relationships, generally do not
suffice to constitute adverse employment actions. After reassignment to One Platoon, Rosati
remained on her prior schedule of Monday-Friday day work while on restricted duty. Her
reassignment to One Platoon is the type of lateral transfer or change of title and reporting
relationship that generally does not constitute an adverse employment action.
Even taking the facts and inferences in the light most favorable to Rosati as the nonmoving party, she has failed to meet her burden to show a prima facie case of discrimination on
the basis of sex or pregnancy.
Hostile Work Environment
An employee may establish a Title VII violation by proving that discrimination based on
sex has created a hostile or abusive work environment. Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 66 (1986). Title VII is violated if an employee is subjected to a workplace “permeated
with discriminatory intimidation, ridicule, and insult…that is sufficiently severe or pervasive to
alter the conditions of the [plaintiff’s] employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted).
The work environment must be objectively hostile or abusive, meaning a reasonable person
would find it to be so. Id.
To prove a prima facie hostile work environment case, a plaintiff must show (1)
intentional discrimination because of her sex, (2) regular and pervasive discrimination, (3) a
detrimental effect, (4) that the discrimination would detrimentally affect a reasonable person of
the same sex in that position, and (5) respondeat superior liability. Andrews v. City of Phila., 895
F.2d 1469, 1482 (3d Cir. 1990). We must consider all the circumstances, including the frequency
of the conduct, its severity, whether the conduct was physically threatening or humiliating or a
mere offensive utterance, and whether the conduct unreasonably interfered with the employee’s
work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). Offhand
comments and isolated incidents -- unless extremely serious -- do not rise to the level of
discriminatory changes in the terms and conditions of employment. Id. at 788. See also
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 863 (3d Cir. 1990) (explaining that
defendant’s “two comments, however, are insufficient, in and of themselves, to support a hostile
environment claim. Hostile environment harassment claims must demonstrate a continuous
period of harassment, and two comments do not create an atmosphere.”).
Because the events and incidents in this case do not rise to the level of severe and
pervasive discrimination, but rather are in the nature of isolated incidents, Rosati cannot meet her
burden of showing a prima facie case of a hostile work environment.
Rosati complains of three specific incidents: two comments in a one-week period in
February of 2012 from Sgt. Colello regarding whether she was “getting fixed” or “keeping her
baby” and the May 2, 2012 incident. Three incidents over a four month period is not a
continuous period of harassment, nor was any incident so serious as to create a hostile work
environment on its own. This conduct was infrequent -- Sgt. Colello and Rosati allegedly had
three such interactions over a fourth month period. The conduct was not severe -- Sgt. Colello’s
comments, though offensive, were isolated. There are no allegations that Sgt. Colello’s conduct
was physically threatening or humiliating. Rather, his conduct was precisely in the category of
mere offensive utterances. Nor are there allegations that Sgt. Colello’s conduct unreasonably
interfered with Rosati’s work performance. While Rosati says Lt. Farley told her that Sgt.
Colello made frequent comments about her children or family, Rosati offers this as hearsay
testimony, and did not herself hear them.
Even viewing the evidence in the light most favorable to Rosati as the non-movant, she
has failed to make a prima facie showing of a hostile work environment.
Title VII’s substantive and anti-retaliation provisions are not coterminous, as the scope of
the anti-retaliation provision extends beyond workplace- or employment-related retaliatory acts
and harm. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). To prove a
prima facie case of retaliatory discrimination, a plaintiff must show: (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 the protected activity and the employment action. Moore
v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006). A plaintiff must demonstrate that a
reasonable employee would have found the challenged action materially adverse, meaning it
would have dissuaded a reasonable worker from making or supporting a charge of
discrimination. Burlington Northern, 548 U.S. at 68 (distinguishing significant and trivial
harms). A plaintiff must show that the unlawful retaliation would not have occurred absent the
alleged wrongful action or actions of the employer. University of Texas Sw. Med. Ctr. v. Nassar,
133 S.Ct. 2517, 2533 (2013).
The timing of an alleged retaliatory action “must be unusually suggestive of retaliatory
motive before a causal link will be inferred.” Williams v. Philadelphia Hous. Auth. Police Dep’t,
380 F.3d 751, 760 (3d Cir. 2004). Days are suggestive; months are not. Id. (citing cases to
demonstrate that two or ten days raised such an inference, but that two months did not). See also
McLaughlin v. Fisher, 277 F. App’x 207, 218-19 (3d Cir. 2008) (non-precedential) (observing
that two days is unusually suggestive, but three months is not). If there is no such proximity, we
may also consider the intervening period for proof of actual antagonistic conduct or animus
against the employee. Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007).
Because Rosati cannot demonstrate that the defendants took any adverse employment
actions against her because of her engagement in protected activity under Title VII, she cannot
meet her burden of showing a prima facie case for retaliation.
Rosati alleges she engaged in protected activity under Title VII by: filing a formal
complaint on May 30, 2012 with the PHRC after the May 2, 2012 incident, calling Internal
Affairs on September 16, 2013, and adding a retaliation claim to her PHRC complaint on March
As discussed above, Capt. Ditchkofsky’s refusal to allow Rosati, as a Crime Prevention
Officer, to work on a schedule designated for Community Relations Officers was not an adverse
employment action. Rosati’s schedule and terms or conditions of employment did not change as
a result of her denied request. Nor was Rosati’s reassignment to One Platoon an adverse
employment action. Again, she remained in her prior schedule of Monday-Friday day work
while on restricted duty. Her reassignment to One Platoon is the type of lateral transfer or change
of title and reporting relationship that generally does not suffice to constitute an adverse
employment action, and there is no evidence that this assignment was less desirable than the one
The misplaced August 26, 2013 maternity leave request is also not an adverse
employment action, and there is not a scintilla of evidence that the request was intentionally
misplaced in retaliation for any protected activity under Title VII. Rosati filed her complaint with
the PHRC on May 30, 2012, but this paperwork incident did not occur until August 26, 2013 -almost fifteen months later. Days are suggestive; months are not. See Williams, 380 F.3d at 760
(two months not suggestive). Nor has Rosati produced any facts to suggest an ongoing period of
hostilities between May 30, 2012 and August 26, 2013 such that we may infer causality between
Rosati has produced no evidence to indicate that Capt. Ditchkofsky, or anyone else,
intentionally mislaid her maternity leave request. A thorough investigation by the Internal
Affairs Bureau, probing deeply into office norms for paperwork and Capt. Ditchkofsky’s
conduct, did not substantiate Rosati’s claim that her paperwork was intentionally mislaid. While
we are not bound by that finding, Rosati cites no evidence from which a reasonable juror could
conclude otherwise. Burlington Northern contemplates a wider scope of conduct that may
constitute retaliation, which might include the intentional destruction of properly submitted
forms, but Rosati supplies no basis upon which a reasonable juror could find that her paperwork
was intentionally lost or destroyed.
The return of Rosati’s March 17, 2014 restricted duty request to her for corrections, her
2014 counseling form, and her performance review for 2013 are also not adverse employment
actions. The parties’ joint facts and stipulations demonstrate that Rosati’s restricted duty request
was returned to her due to many technical and substantive deficiencies, and once Rosati
corrected them her request was promptly approved. No reasonable juror could find any facts to
Rosati’s 2014 counseling form is not an adverse employment action. As we have
explained, the Philadelphia Police Department “uses counseling forms as a tool for training
employees and does not consider them to be disciplinary actions. Counseling forms are never
placed in an employee’s personnel file. Furthermore, they cannot result in any disciplinary action
being taken against an employee such as a loss in pay, transfer, or suspension nor can they
influence an employee’s eligibility for promotions or raises.” Torres v. Deblasis, 959 F. Supp. 2d
772, 781 (E.D. Pa. 2013).
Rosati believes the counseling form was unwarranted based on other instructions she
received from someone higher up in the chain of command. Pl. Statement of Additional Facts at
¶ 161. In fact, the counseling form was later removed from her file. Rosati Dep. 246:9-247:16.
The later retraction of the counseling form does not impugn its motive or render it an adverse
employment action. Rosati believes, contrary to the Philadelphia Police Department’s official
policy, that counseling memos are used more broadly. Id. at 285:16-24. But she provides no
evidence to support this conclusory allegation. Further, nothing about the timing of the
counseling form suggests it was issued in retaliation for protected Title VII activity.
Finally, Rosati’s 2013 performance review, issued in 2014, was not an adverse
employment action taken in retaliation for protected Title VII conduct. The performance review
rated Rosati’s work as satisfactory, but in its initial version referred to the 2014 counseling form,
even though the underlying conduct took place after the 2013 calendar year. After Rosati
disagreed with the review, all mention of the counseling form was removed, and the performance
review was reissued. While a negative performance review could be an adverse employment
action, Rosati must show that the unlawful retaliation would not have occurred absent the alleged
wrongful action or actions of the employer. Rosati cannot make that showing on the basis of
either temporal proximity or any other inference of causality. Rosati did not make her second
PHRC complaint until March 5, 2014, and her initial performance review was issued on April
16, 2014, more than a month later.
Rosati cannot meet the burden of showing a prima facie case of discrimination, hostile
work environment, or retaliation. Even viewing the facts in the light most favorable to Rosati as
the non-movant, her claims are insufficient as a matter of law. The defendants are therefore
entitled to summary judgment. An appropriate Order follows.
BY THE COURT:
_/s/ Stewart Dalzell, J.
Stewart Dalzell, J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?