SLAUGHTER v. COUNTY OF ALLEGHENY et al
Filing
89
MEMORANDUM OPINION AND ORDER granting 74 Motion in Limine. In accordance with this Memorandum Opinion, the Motion in Limine 74 is granted, all other pending motions are denied as moot, and judgment will be entered in favor of the County. This case will be docketed as closed. Signed by Judge Terrence F. McVerry on 7/30/2014. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 2:11-cv-00880
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FRANK SLAUGHTER,
Plaintiff,
v.
COUNTY OF ALLEGHENY,
Defendant.
Memorandum Opinion and Order of Court
In this case, Sergeant Frank Slaughter contends that he was reassigned from his
position as Assistant Unit Manager on Level 5E at the Allegheny County Jail in
retaliation for having made an internal complaint about racially abusive conduct by a
former co-worker, Corrections Officer Ryan, toward inmates. See Joint Stipulation (ECF
No. 88). Trial is scheduled to commence on August 11, 2014. Now pending before the
Court are a number Motions in Limine filed by both Plaintiff and Defendant on July 21,
2014. (ECF Nos. 73-77). Responses have been filed to all motions and they are ripe for
disposition.
However, in the MOTION IN LIMINE TO EXCLUDE TESTIMONY AND
EVIDENCE NOT RELEVANT TO TITLE VII RETALIATION CLAIM, (ECF No. 74),
Defendant has raised a potentially case-dispositive legal issue which may render the
remaining pretrial motions moot. For the following reasons, the Court will GRANT
Defendant’s motion; enter judgment in favor of Defendant as a matter of law; and docket
this case closed.
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Procedural History
This case has a long and unusual procedural history. Because all parties are
aware of the facts of the matter, only the most relevant proceedings are recited herein. In
December 2012, after discovery had been completed and pretrial statements had been
filed, former counsel for Defendants filed a less than adequate “Motion to Dismiss.” By
Memorandum Order of March 11, 2013, the Court denied the motion without prejudice;
articulated its concerns regarding the scope and merits of Plaintiff’s claims (with citation
to authority); ordered Plaintiff to clearly identify the claims and legal theories he intended
to pursue; and provided both sides with an opportunity to be heard as to why summary
judgment should not be granted pursuant to Fed. R. Civ. P. 56(f).
In response, Plaintiff filed a Statement of Claims which significantly narrowed the
scope of this action and asserted the following claims: (1) hostile work environment
from August 2008-present due to his race; and (2) retaliation for Slaughter’s internal
complaints under Title VII and the PHRA against Allegheny County. Plaintiff also
continued to assert claims under § 1983 against the Individual Defendants for conduct
which allegedly occurred after July 6, 2009, in violation of his right to Equal Protection
under the Fourteenth Amendment. Plaintiff’s Statement of Claims attempted, for the first
time, to assert PHRA “aiding and abetting” claims against the Individual Defendants.
The Court rejected such claims because they had not been pled in the Complaint. See
Horvath v. Keystone Health Plan E., Inc., 333 F.3d 450, 459 (3d Cir. 2003) (holding that
claim failed “at the most basic level because it finds no support in the plain language of
Horvath's complaint”); Conseco Life Ins. Co. v. Smith, 2013 WL 3285065 at *4 (D.N.J.
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2013) (“A plaintiff cannot raise claims for the first time at the summary judgment stage,
if they were not included in their Complaint.”) (citations omitted).
Defendants filed a revised summary judgment motion. Plaintiff moved to strike
the motion due to Defendants’ failure -- again -- to comply with Local Rule 56. In a
lengthy Opinion on October 1, 2013, the Court struck the motion; however, in the
exercise of its gate-keeping responsibility under Fed. R. Civ. P. 56(f), the Court
dismissed all of Plaintiff’s claims, except for one narrow retaliation claim under Title VII
and the PHRA. Specifically, the Court held:
In summary, the retaliation claim will survive summary judgment, albeit
in a very limited, targeted respect. Slaughter will be provided an
opportunity to prove to the jury that the County violated Title VII and the
PHRA by assigning him to the Floater position in retaliation for his
internal complaints of misconduct by corrections officer Ryan. Slaughter
will not be permitted to advance any other theory of retaliation and the
evidence presented at trial must be narrowly tailored to be relevant to this
discreet claim.
(Opinion at 13). As the Court explained, this was the sole theory on which Plaintiff had
asserted a plausible causal connection between an adverse employment action and a
protected activity. The County of Allegheny is the only remaining Defendant in the case.
Pursuant to the final pretrial order, the parties have filed a number of motions in
limine. Although styled as a Motion in Limine to exclude evidence not relevant to a Title
VII retaliation claim (ECF No. 74), Defendant has raised a dispositive legal issue –
specifically, that Plaintiff Slaughter has not engaged in cognizable “protected activity.”
Plaintiff has fully responded to this contention. After examining the cases cited by both
sides, as well as conducting its own research, the Court concludes that Plaintiff’s
remaining retaliation claim fails as a matter of law. This has been an unusual case, and
issues which ought to have been raised earlier in the proceeding unfortunately were not.
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Regardless of the timing, the issue which Defendant now raises is dispositive, such that a
jury trial is not justified.
Discussion
Plaintiff originally asserted various claims of retaliation under Title VII and the
PHRA. However, the only theory which the Court found to survive summary judgment
was Plaintiff’s allegation that he was reassigned to a less desirable position after
complaining of racial misconduct by white corrections officer Ryan against inmates at the
Allegheny County Jail. (Opinion at 13). In the instant motion, Defendant argues that
Plaintiff did not engage in Title VII “protected activity” when he reported the allegedly
racially motivated mistreatment of inmates at the jail by officer Ryan.
Congress enacted Title VII to address discriminatory employment practices. The
law states, in pertinent part, that:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individuals race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individuals race, color, religion,
sex, or national origin.
42 U.S.C. § 2000e-2(a) (emphasis added).
Title VII provides a separate statutory remedy for retaliation claims. Title VII §
2000e–3(a) provides that “[i]t shall be an unlawful employment practice for an employer
to discriminate against any of his employees ... because he has opposed any practice
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made an unlawful employment practice by this subchapter [of Title VII] or because
he has made a charge, testified, assisted or participated in any manner in an investigation,
proceeding, or hearing under this subchapter [of Title VII].” 42 U.S.C. § 2000e–3(a)
(emphasis added). To establish a retaliation claim against an employer under Title VII, a
plaintiff must demonstrate that: (1) he engaged in protected activity; (2) the employer
subjected him to an adverse employment action after or contemporaneously with his
protected activity; and (3) a causal link exists between the employee’s protected activity
and the employer’s adverse action. Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir.
2006). This test is identical to the analysis for claims arising under PHRA. See Weston v.
PA, 251 F.3d 420, 426 n.3 (3d Cir. 2001); see also Frog, Switch & Mfg. Co. v. Pa Human
Relations Comm’n., 885 A.2d 655, 660 n.4 (Pa. Commw. Ct. 2005). Therefore, the Title
VII and PHRA claims should be analyzed together.
To meet the “protected activity” prong of the Moore test, a plaintiff must show
that he was discriminated against because he either: (1) had opposed any practice made
an unlawful employment practice by Title VII, or (2) had made a charge, testified,
assisted or participated in any manner in an investigation, proceeding, or hearing under
Title VII. 42 U.S.C.§ 2000e–3(a). The parallel text of the PHRA defines “protected
activity” as: (1) a plaintiff opposed any practice forbidden by this act [the PHRA], or (2)
made a charge, testified, or assisted, in any manner, in any investigation, proceeding or
hearing under this act [the PHRA]. 43 Pa. Stat. Ann. § 955(d).
In this case, Plaintiff’s remaining retaliation claim implicates only the
“opposition” clause. Slaughter alleges that he opposed Officer Ryan’s racist treatment of
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inmates, but Slaughter did not “participate” in any manner in an investigation, proceeding
or hearing under Title VII regarding Ryan’s actions.
The question of that which precisely constitutes “protected activity” under Title
VII has been addressed by the Third Circuit in Slagle v. County of Clarion, 435 F.3d 262
(3d Cir. 2006). In that case, the plaintiff had been suspended and terminated from his
position at the Clarion County jail, allegedly in retaliation for his complaints about
misconduct by other jail employees. Id. at 263. The Court held that Slagle did not engage
in “protected activity” under Title VII merely by having filed a charge with the EEOC,
regardless of its content:
The language at issue [§ 2000e-3] has a clear and unambiguous meaning.
An employee filing a charge is protected only if the charge is brought
under “this subchapter.” The phrase “this subchapter” refers specifically to
42 U.S.C. §§ 2000e through 2000e–17, the provisions that set forth an
employee's rights when an employer has discriminated against him or her
on the basis of race, color, sex, religion, or national origin. It follows that a
charge “under this subchapter” is a charge that alleges discrimination on
the basis of those prohibited grounds.
Slagle's argument that an employee is protected when s/he files any
charge, regardless of its content, is to render the phrase “under this
subchapter” meaningless. Such an interpretation is contrary to the
accepted rules of statutory interpretation. See Cooper, 396 F.3d at 312 (“It
is a well known canon of statutory construction that courts should construe
statutory language to avoid interpretations that would render any phrase
superfluous.”); see also Philip J. Pfeiffer, Employment Discrimination
Law 499 (2002) (“The retaliation provisions of [Title VII] do not protect
employees from retaliation for filing any charge alleging any misconduct;
to gain protection, the charge—factually supported or not—must allege
conduct within the scope of the statute.”).
Id. at 266-67.
The Third Circuit also provided guidance on this issue in Curay-Cramer vs.
Ursuline Academy of Wilmington, Inc., 450 F.3d 130, 134-35 (3d Cir. 2006), in which it
held that a woman, who had been terminated by a Catholic school for supporting a pro
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choice position, had not engaged in “protected activity” because her pro-choice advocacy
did not constitute opposition to an illegal “employment practice” under Title VII.
In Wimmer v. Suffolk County Police Dept., 176 F.3d 125 (2d Cir. 1999), which is
factually similar to this case, the Second Circuit Court of Appeals held that plaintiff had
not engaged in “protected activity.” Wimmer was a probationary member of the Suffolk
County Police Department. Id. at 128. During his police training, he frequently spoke
about his belief in equality for all people, and his belief that this equality was not always
respected by the police. Id. Wimmer was eventually terminated for “unsatisfactory
performance,” which he alleged was in retaliation for having reported racial slurs by
other police officers towards black civilians. Id. at 134. The Second Circuit refused to
recognize Wimmer’s action as protected activity because the only discrimination
Wimmer opposed related to people who were not employees. Id. at 135. Accord Crowley
v. Prince George’s County, 890 F.2d 683 (4th Cir. 1989) (holding that a theory of
retaliation for “investigating instances of racial harassment perpetrated by police officers
against members of the community” was not valid under Title VII); Silver v. KCA, Inc.,
586 F.2d 138, 141 (9th cir. 1978) (“Not every act by an employee in opposition to racial
discrimination is protected [under Title VII]. The opposition must be directed at an
unlawful employment practice of an employer, not an act of discrimination by a private
individual.”).
Wimmer very clearly held that employee complaints about racially discriminatory
actions by co-workers against non-employees are not “protected activity” under Title VII.
Several district courts in the Third Circuit have followed Wimmer as a basis for their
decisions. See, e.g., Rife v. Borough of Dauphin, 647 F.Supp.2d 431, 444 (M.D. Pa.
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2009) (“The anti-retaliation clause does not prohibit retaliation for speaking out against
prejudice that has no nexus to employment discrimination and the unequal treatment of
employees on the basis of their race.”).
In his reply to Defendants’ Motion in Limine to Exclude Testimony and
Evidence, (ECF No 80), Plaintiff cites several non-binding cases which allegedly
interpret Title VII favorably for his claim. Quoting Rogers v. EEOC, Plaintiff notes that
“petitioner’s failure to direct intentionally any discriminatory treatment towards
[plaintiff] is simply not material to the finding of an unlawful employment practice.” 454
F.2d 234, 239 (5th Cir. 1971). However, the discussion in Rogers focused on a hostile
work environment claim – not a retaliation claim. Id. See Meritor Savings Bank v.
Vinson, 477 U.S. 57, 65 (1986) (“In Rogers, the Court of Appeals for the Fifth Circuit
held that a Hispanic complainant could establish a Title VII violation by demonstrating
that her employer created an offensive work environment for employees…”). In the
present case, the only claim which has survived is whether Slaughter has suffered
retaliation for complaints he made about a fellow corrections officer’s racially motivated
mistreatment of inmates. This Court has specifically dismissed Plaintiff’s claim of a
hostile work environment, and therefore the analysis in Rogers is not applicable to this
case.
It is clear from the holding and discussion in Slagle, Curay-Cramer, Wimmer and
Rife that complaints such as Plaintiff’s, which do not relate to “unlawful employment
practices,” are not “protected activity” under Title VII.
The racially motivated
misconduct which Plaintiff reported was not an unlawful employment practice, because
the misconduct was directed at prisoners, and not employees. Even if Plaintiff were able
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to establish that the reassignment to his new position constituted an adverse employment
action, and even if he could prove that the reassignment to this new position was causally
connected to his complaints, Slaughter’s retaliation claims would fail nevertheless
because Title VII and PHRA address employment practices, and cannot be used to
redress all claims of racism between citizens.
Conclusion
Defendant is entitled to judgment as a matter of law on Plaintiff’s sole remaining
claim, that he was reassigned from his position as Assistant Unit Manager on Level 5E at
the Allegheny County Jail in retaliation for making an internal complaint about racially
abusive conduct toward inmates by former Corrections Officer Ryan. The Court finds
that Title VII and the PHRA do not protect employees from retaliation when they report
something other than an unlawful employment practice. Although the Court commends
Slaughter for notifying his supervisors about the alleged mistreatment of inmates based
on their race, Title VII and PHRA cannot be stretched to remediate more than the plain
language of the statutes permits.
In accordance with the foregoing, the MOTION IN LIMINE TO EXCLUDE
TESTIMONY AND EVIDENCE NOT RELEVANT TO TITLE VII RETALIATION
CLAIM, (ECF No. 74), will be GRANTED, all other pending motions will be DENIED
AS MOOT; and judgment will be entered in favor of the County. This case will be
docketed as closed.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:11-cv-00880
)
)
)
)
FRANK SLAUGHTER,
Plaintiff,
v.
COUNTY OF ALLEGHENY,
Defendants.
ORDER OF COURT
AND NOW, this 30th day of July, 2014, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED and DECREED that
DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY AND
EVIDENCE NOT RELEVANT TO TITLE VII RETALIATION CLAIM (ECF No. 74)
is GRANTED; and all other pending motions (ECF Nos. 73, 75, 76, 77) are DENIED
AS MOOT. Judgment is hereby entered in favor of Defendant and against Plaintiff. The
clerk shall docket this case CLOSED.
BY THE COURT
s/Terrence F. McVerry
United States District Judge
cc:
Susan E. Mahood, Esquire
Email: susanemahood@yahoo.com
Jake Lifson, Esquire
Email: jake.lifson@alleghenycounty.us
Frances M. Liebenguth
Email: Frances.Liebenguth@AlleghenyCounty.US
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