THOMAS-TAYLOR v. CITY OF PITTSBURGH, BUREAU OF POLICE
Filing
79
MEMORANDUM OPINION re 45 MOTION for Summary Judgment filed by FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1, 48 MOTION for Summary Judgment filed by CITY OF PITTSBURGH. Signed by Chief Judge Joy Flowers Conti on 8/18/2014. (blr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Cathy THOMAS-TAYLOR,
Plaintiff,
v.
CITY OF PITTSBURGH and
Civil Action No. 13-164
FRATERNAL ORDER OF POLICE,
FORT PITT LODGE No. 1,
Defendants.
MEMORANDUM OPINION
I.
Introduction
Pending before the court are motions for summary judgment filed by
defendants City of Pittsburgh (the “City”) and Fraternal Order of Police Fort Pitt
Lodge No. 1 (the “FOP”). (ECF Nos. 48, 45.) The City filed a brief (ECF No. 49)
and a concise statement of material facts (ECF No. 50) in support of its motion.
The FOP also filed a brief and a concise statement of material facts in support of
its motion. (ECF Nos. 46, 47.) Plaintiff Cathy Thomas-Taylor (“plaintiff”) filed
responses in opposition to the motions (ECF Nos. 54, 55) and briefs in opposition
(ECF Nos. 57, 60.) The City and the FOP filed respective replies to those briefs.
(ECF Nos. 65, 63.) The parties filed a joint statement of undisputed facts. (ECF
No. 77.)
Plaintiff alleges the FOP retaliated against her when it declined to file
grievances on her behalf, in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e–2000e-17. Plaintiff asserts four counts against
the City. Plaintiff brings a breach of contract claim (count one). Plaintiff alleges
the City interfered with her pension eligibility in retaliation for discrimination
charges she previously filed against them, in violation of Title VII (count two) and
the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461
(count three). Plaintiff also brings a claim for unlawful interference under ERISA
(count four).
II.
Factual Background
Plaintiff, an African-American female, began her employment with the
City on September 25, 1989, as a police officer. (Joint Statement of Undisputed
Facts ¶ 1, ECF No. 77.) Through her employment, plaintiff was a member of the
FOP. The FOP is the collective bargaining representative for union members. (Id.
¶¶ 2, 3.)
A. City
In May 2001 and June 2002, plaintiff suffered work-related back injuries
resulting in ongoing medical treatment and periods of leave from work. (Id. ¶ 4.)
As a result of these injuries, plaintiff was placed on benefits pursuant to the Heart
and Lung Act (“HLA”), 53 PA. STAT. § 637. (Id ¶ 5.) HLA benefits are available to
state and municipal employees who suffer temporary work-related injuries
during the performance of their job duties, and extend full compensation and
employee benefits for the duration of the injury. 53 PA. STAT. § 637. While
plaintiff was receiving HLA benefits, the City continued to contribute to her
pension plan from HLA benefits as required by the working agreement between
the FOP and the City. (ECF No. 77, ¶ 7.) The working agreement outlines the
compensation, benefits, and obligations of the City to FOP union members. (ECF
No. 46-4.)
On January 14, 2008, plaintiff filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) against the City, claiming
she was denied seniority status in selecting shifts and pass days for the coming
2
year, known as “job-pick” status, based upon her disability and race. (ECF No. 32,
¶ 34.)
In June 2009, the City filed a petition to discontinue plaintiff’s HLA
benefits on account of her impairment no longer being temporary in nature. (ECF
No. 58-6.) An arbitrator issued an order on June 6, 2009, granting the petition to
terminate HLA benefits and indicating plaintiff would be converted to worker’s
compensation benefits, pursuant to the Worker’s Compensation Act, 77 PA. STAT.
§ 411 . (ECF No. 58-7.) Plaintiff was informed of this decision via a letter from
the Policeman’s Relief and Pension Fund of the City of Pittsburgh (“Pension
Fund”) dated August 17, 2010. (ECF No. 58-12.) This letter advised the plaintiff
that her automatic pension contributions ceased as of June 7, 2009, and that she
should contact the Pension Fund to discuss her retirement options as a result of
the conversion. (Id.)
In December 2009, plaintiff filed suit against the City in the District Court for
the Western District of Pennsylvania at Civil Action No. 09-1648 for
discrimination based upon disability and race, relating to her loss of “job-pick”
status. In December 2010, plaintiff and the City settled the dispute by executing
a settlement agreement and general release. (ECF No. 58-14.) Under the
settlement agreement, inter alia, plaintiff received a $95,000 payment, and she
was required to resign on or before February 28, 2011. (Id.) The settlement
agreement included an extensive general release of claims against the City. (Id.)
The scope of this release is now disputed by plaintiff and the City as it pertains to
plaintiff’s ability to bring claims against the City.
On January 11, 2011, prior to her designated resignation, plaintiff applied
for disability pension benefits. (ECF No. 58-17.)
She was examined by a
physician, who was unable to diagnose her pain and could not state that she was
physically disabled. (Id.) Shortly after her application, plaintiff was informed by
3
the Pension Fund that her claim was denied. (ECF No. 77, ¶ 29.) On June 9, 2011,
plaintiff filed a second charge of discrimination against the City with the EEOC,
alleging the denial of her request for disability pension was discriminatory and
retaliation for her previous charge of discrimination. (ECF No. 58-16.)
On January 9, 2012, plaintiff was informed by the Pension Fund that she
was ineligible to receive her regular pension at age 50, because she lacked the
requisite twenty years, or 240 months, of pension contributions. (ECF No. 77,
¶ 33.) The Pension Fund calculated plaintiff’s contribution time at nineteen years
and five months. (Id. ¶ 34.) In a letter to plaintiff’s attorney, the Pension Fund
stated its records showed “no [pension contributions] for March 1998, only six
months in 2009 and one for 2010.” (ECF No. 46-10.) The letter raised the
possibility of plaintiff being able to “purchase this time back” to qualify for
pension benefits. (Id.)
On March 26, 2011, plaintiff filed suit against the FOP at Civil Action No.
11-399. On February 22, 2012, plaintiff amended the complaint to assert a breach
of contract claim against the City, citing failure to make pension contributions on
her behalf as required by the working agreement. On January 31, 2013, plaintiff
filed a new complaint against the City claiming breach of contract, Title VII
Retaliation, ERISA retaliation, and ERISA interference relating to pension
eligibility. These claims were filed in this action.
B. FOP
Throughout the discourse between plaintiff and the City, plaintiff turned
to the FOP for representation in matters pertaining to her “job pick” status,
pension, and longevity pay. Plaintiff alleges the FOP acted in bad faith and
retaliated against her by refusing to file her grievances against the City.
On January 14, 2008, plaintiff filed an EEOC charge of discrimination
against the FOP because it refused to file a grievance she wished to bring against
4
the City concerning her “job pick” privileges. (ECF No. 77, ¶ 8.) At the FOP’s next
meeting, in February 2008, membership passed a motion that if a member brings
a complaint or suit against the FOP and the FOP “is found of no wrongdoing, the
member then must reimburse [the FOP] for the cost of the defense.” (ECF No.
62-7.)
In September 2009, unrelated to her first charge of discrimination, plaintiff
attempted to file another grievance against the City, this time relating to her
longevity pay, which is a benefit paid to employees based upon length of service.
(ECF No. 47, ¶ 7; ECF No. 61, ¶ 7.) The FOP refused to file the grievance. (Id.) The
FOP asserts the grievance is meritless because plaintiff’s worker’s compensation
status precluded her from receiving benefits and alternatively, the claim was
premature, as benefits would not come due until the following February. (ECF
No. 46, at 7.)
On January 25, 2010, plaintiff filed a second charge of discrimination with
the EEOC against the FOP, claiming its refusal to file her longevity pay grievance
was retaliation for her prior charge of discrimination against the FOP. (ECF No.
47, ¶ 8; ECF No. 61, ¶ 8.) On March 26, 2011, plaintiff filed suit against the FOP
at Civil Action No. 11-399, claiming she was retaliated against for her prior
discrimination charges in violation of Title VII. That action was consolidated with
this action.
III.
Standard of Review for Summary Judgment
Summary judgment is appropriate if the record shows 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). In evaluating the motion, all factual inferences must
be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The court asks whether there is a need for trial—“whether,
5
in other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either
party.” Liberty Lobby, 477 U.S. at 250. In ruling on a motion for summary
judgment, the court’s function is not to weigh the evidence or to determine the
truth of the matter, but only to determine whether the evidence of record is such
that a reasonable jury could return a verdict for the nonmoving party. Id. at 24849; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)
(citing decisions).
The burden of showing that no genuine issue of material fact exists rests
initially on the party moving for summary judgment. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080
(3d Cir. 1996). The moving party may satisfy its burden either by producing
evidence showing the absence of a genuine issue of material fact or by
“‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. A
defendant who moves for summary judgment is not required to refute every
essential element of the plaintiff’s claim; rather, the defendant must only point
out the absence or insufficiency of plaintiff’s evidence offered in support of one or
more of those elements. Id. at 322-23. Once the movant meets that burden, the
burden shifts to the nonmoving party to present sufficient evidence
demonstrating that there is indeed a genuine and material factual dispute for a
jury to decide. Id. at 323-25; Liberty Lobby, 477 U.S. at 247-48.
The nonmoving party must do “more than simply show there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). To survive summary judgment, the
nonmoving party must “make a showing sufficient to establish the existence of
[every] element essential to that party’s case, and on which that party will bear
6
the burden of proof at trial.” Celotex, 477 U.S. at 322. If the nonmovant produces
evidence that is “merely colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations
omitted). The nonmovant must “‘identify those facts of record which would
contradict the facts identified by the movant.’’’ Port Auth. v. Affiliated FM Ins.
Co., 311 F.3d 226, 233 (3d Cir. 2002) (quoting Childers v. Joseph, 842 F.2d 689,
694-95 (3d Cir. 1988)).
The mere existence of a factual dispute will not necessarily defeat a motion
for summary judgment. Only a dispute over a material fact—that is, a fact that
would affect the outcome of the suit under governing substantive law—will
preclude the entry of summary judgment. Liberty Lobby, 477 U.S. at 248. Even
then, the dispute over the material fact must be genuine, such that a reasonable
jury could resolve it in the nonmoving party’s favor. Id. at 248-49.
IV.
Discussion
A. Claims Against the City
Plaintiff asserts claims of breach of contract, Title VII retaliation, and
ERISA retaliation and interference. Plaintiff contends that the City wrongfully
converted her from HLA to worker’s compensation benefits and ceased pension
fund contributions on her behalf. Plaintiff alleges these actions violated the
working agreement and were taken to retaliate against her and interfere with her
pension eligibility. (ECF No. 57, at 2, 11, 16, 17.)1
1
In her complaint, plaintiff vaguely alleges the City engaged in “behavior to
ensure her disability pension would be denied and engaged in behavior that
would insure her years of service would be decreased by either altering or
failing to satisfy its obligation.” (ECF No. 32, ¶¶ 69-70.) The only directly
identified actions taken by the City are the conversion from HLA to worker’s
compensation and cessation of pension contributions.
7
All these claims, however, are precluded by the settlement agreement
executed between plaintiff and the City. The settlement agreement reads in
relevant part:
4. General Release of Claims. Ms. Thomas Taylor
knowingly an voluntarily releases and forever discharges
the City and its current and former employees, attorneys,
officers, directors and agents thereof and the current and
former trustees of administrators of any pension or other
benefit plan applicable to the employees or former
employees of City . . . of and from any and all claims,
demands, liabilities obligations, promises, controversies,
damages, rights, actions and causes of action, known and
unknown, whether in law or equity, which Ms. Thomas
Taylor has or may have asserted against the City as of the
date of execution of this Agreement, at common law, under
contract, or under any statute or law, federal state or,
including but not limited to any alleged violation of: Title
VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act of 1967, as amended;
the Older Workers Benefit [sic] Protect Act; the
Pennsylvania Human Relations Act; and any other federal,
state or local law or any allegation for costs, fees, or other
expense including attorney’s fees (all of the above
collectively referred to as “Claims”). This includes any claim
to longevity pay for 2011.
This release is intended to be a general release and excludes
only those claims under any statute or common law that
Ms. Thomas Taylor is legally barred from releasing. Ms.
Thomas Taylor understands that the release does not
include any claim that cannot be released or waived as a
matter of law; any claim for or right to vested benefits
under City’s plans; any right to enforce any term of this
Agreement; any claims based on acts of events occurring
after Ms. Thomas Taylor signs this agreement, or any
prohibition on the filing of a charge or complaint with any
federal, state or local governmental agency, including but
not limited to the EEOC.
....
8
6. Affirmations. . . . .
. . . Ms. Thomas Taylor covenants and agrees not to file a
lawsuit against City in any court of the United States or any
state thereof asserting any claim or cause of action released
in paragraph 4.
(ECF No. 58-14, ¶¶ 4, 6.)
Although the settlement agreement resolved a separate discrimination
claim, all the claims brought in the present case could have been brought at the
time the agreement was signed in December 2010. The plaintiff articulates two
actions taken by the City as the basis for her claims: (1) the City improperly
converted her from HLA to Worker’s Compensation; and (2) the City improperly
ceased contributions to her pension. Both of these actions preceded the
settlement agreement. Plaintiff was officially converted from HLA to Worker’s
Compensation on June 2, 2009. (ECF No. 77, ¶ 9.) The City ceased pension
contributions at that time. (Id. ¶ 10.) By a letter dated August 17, 2010, plaintiff
was notified of the conversion and was informed the City had ceased
contributions to her pension. (ECF No. 58-12.) The benefit conversion and
cessation of pension contributions occurred more than a year prior to the
settlement agreement. She was notified of those changes several months before
entering into the agreement. Plaintiff may not have been fully aware of the effects
these actions would have on her pension eligibility, but she was aware of their
occurrence. The agreement bars all causes of action both “known and unknown”
at the time of signing. (ECF No. 58-14, ¶ 4.)
Plaintiff disputes the waiver of these claims. (ECF No. 57, at 20.) “Plaintiff
did not, nor did she intend to, waive any claims set forth in her Complaint.” (Id.)
Whether or not it was her intention to waive her claims, she (and her attorney)
9
signed the settlement agreement.2 (ECF No. 58-14, at 6.) Plaintiff additionally
argues that the waiver of her “vested benefits” is prohibited by the compromise
and release she signed prior to the settlement agreement and because “[p]laintiff
could not waive her vested rights or entitlement to pension benefits because
‘entitlement’ claims cannot be waived by a general release.”3 (Id. at 20-21.)
plaintiff’s “vested rights or entitlement to pension benefits” are not at issue in
this lawsuit. Another entity, the Pension Fund, determined her pension
eligibility. (ECF No. 77, ¶ 39.) Plaintiff sued the Pension Fund, but later
voluntarily dismissed her claims against it. (ECF No. 78.)
None of plaintiff’s claims against the City are legally barred from being
released. Title VII claims may be waived as part of a voluntary settlement.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974).4 The settlement
agreement clearly contemplated claims related to plaintiff’s pension, as it
specifically releases “the current and former trustees or administrators of any
pension or other benefit plan applicable to the employees or former employees of
City.” (ECF No. 58-14, ¶ 4.) The settlement agreement released any claims “under
contract.” (Id.)
2
The settlement agreement contains an integration clause, which provides
that “[n]o prior or contemporaneous oral or written agreements or
representations may be offered to alter the terms of this Agreement[,] which
represents the entire agreement of the parties with respect to the subject
matter hereof.” (ECF No. 58-14, ¶ 14.) The parties also agreed that any
modification of the settlement agreement must be in a signed writing. (Id.
¶ 13.)
3
Plaintiff provided no authority for this statement.
4
While “there can be no prospective waiver of an employee’s rights under
Title VII,” Alexander, 415 U.S. at 51, the settlement agreement only waived
claims plaintiff asserted or may have asserted at the time of execution of the
agreement. (ECF No. 58-14, ¶ 4.)
10
The Third Circuit Court of Appeals has repeatedly held that “an employee’s
settlement and release of claims, if knowing and voluntary, waives those claims
and bars a subsequent suit.” Henson-Miksic v. Potter, 250 F. App’x 509, 511 (3d
Cir. 2007); see Coventry v. U.S. Steel Corp., 856 F.2d 514, 522 (3d Cir. 1988).
Plaintiff did not allege, and provided no evidence, that the settlement agreement
was fraudulent or somehow not knowing and voluntary. To the contrary, the
evidence indicates that plaintiff was represented by counsel and the releases in
the settlement agreement were part of a bargained-for exchange. Plaintiff
received $95,000 in return for releasing all claims against the City. Although
plaintiff is upset she is not receiving pension benefits, she cannot seek redress
from the City for actions it took prior to the execution of the settlement
agreement; those claims are waived. Only legal issues are disputed. There are no
genuine issues of material fact in dispute. The City’s motion for summary
judgment will be granted.
B. Title VII Retaliation Claim Against the FOP
Plaintiff asserts a claim of retaliation under Title VII against the FOP. In
January 2008, plaintiff filed a charge of discrimination against the FOP, claiming
the FOP failed to fully represent her in matters pertaining to job selection based
on her race and sex, in violation of Title VII. (ECF No. 77, ¶ 8.) Plaintiff argues
the FOP retaliated against her for filing this charge of discrimination in three
ways: (1) the FOP declined to file a grievance against the City based upon
plaintiff’s claim to longevity pay; (2) the FOP adopted a policy holding members
responsible for legal fees and sent plaintiff a letter asserting that she owed the
FOP legal fees after the charge of discrimination was resolved; and (3) the FOP
11
ceased communicating with plaintiff for a period of time in 2009 and 2010. (ECF
No. 60, at 3, 6.)5
Title VII prohibits a labor organization from discriminating against a
member because the member made a charge of employment discrimination. 42
U.S.C. § 2000e-3(a). A Title VII retaliation claim is analyzed under the burdenshifting framework set forth by the Supreme Court in McDonnell Douglas v.
Green, 411 U.S. 792 (1973). Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir.
2006). First, plaintiff must establish a prima facie case of retaliation. “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
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.’” Id. at 340-41 (quoting Nelson v. Upsala Coll., 51 F.3d 383,
386 (3d Cir. 1995)). The causation element requires a plaintiff to “establish that
his or her protected activity was a but-for cause of the alleged adverse action by
the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534
(2013).
5
Plaintiff argues that the FOP breached its “duty of fair representation” as set
forth in Vaca v. Sipes, 386 U.S. 171, 177 (1967). (ECF No. 60, at 8.) In Vaca,
the Supreme Court addressed a union’s statutory duty under § 8 of the
National Labor Relations Act, 29 U.S.C. § 158. Vaca, 386 U.S. at 176-77. A
union violates this duty if its conduct toward a member is “arbitrary,
discriminatory, or in bad faith.” Id. at 190. This duty applies to the
processing of grievances. Id. at 194. The only outstanding claim against the
FOP in this case, however, is retaliation under Title VII. Vaca is therefore
inapposite. At issue is whether the FOP retaliated against plaintiff for her
protected Title VII activity, not whether it violated any duty under the
National Labor Relations Act.
12
The burden at the prima facie stage is “not particularly onerous.” Doe v.
C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008). If a prima facie case is
established, the burden shifts to the defendant “to advance a legitimate, nonretaliatory reason for its conduct.” Moore, 461 F.3d at 342 (internal quotation
marks omitted). If it does so, the plaintiff must “convince the factfinder both that
the employer’s proffered explanation was false, and that retaliation was the real
reason for the adverse employment action.” Id. (internal quotation marks
omitted).
The FOP does not dispute that plaintiff engaged in a protected activity. In
2007, plaintiff filed a charge of discrimination against the FOP, claiming the FOP
failed to represent her fully in matters pertaining to job selection based on her
race and sex, in violation of Title VII. (See ECF No. 46-3). Plaintiff filed a second
charge of discrimination with the EEOC on January 25, 2010. (ECF No. 47, ¶ 8;
ECF No. 61, ¶ 8.) Filing a charge of discrimination with the EEOC is a protected
activity. Protection from retaliation “is not lost merely because an employee is
mistaken on the merits of his or her claim.” Slagle v. Cnty. of Clarion, 435 F.3d
262, 268 (3d Cir. 2006). All that is required is that the plaintiff previously
engaged in a protected activity in response to an act of perceived discrimination
based upon race, sex, or disability. Id. at 268. The first element of the prima facie
case is met.
The next element of the prima facie case is whether plaintiff suffered an
adverse employment action under Title VII. The antiretaliation provision of Title
VII is not limited to discriminatory actions that affect the terms and conditions of
employment. Moore, 461 F.3d at 341. Actions must only be what a reasonable
employee would have found “‘materially adverse’” and what “‘well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
13
U.S. 53, 68 (2006)). The purpose of the antiretaliation provision is to maintain
“unfettered access” to the “remedial mechanisms” of Title VII. Burlington N., 548
U.S. at 64 (internal quotation marks omitted).
For the purposes of this opinion, the court will assume that the actions
plaintiff complains of constitute adverse employment actions under Title VII.
Refusing to file grievances, charging members legal fees for unsuccessful charges
of discrimination and lawsuits, and ceasing communications might dissuade a
reasonable union member from making a charge of discrimination. Considering
the broad purpose of the antiretaliation provision and the light burden at the
prima facie stage, the adverse employment action element is satisfied.
Finally, plaintiff must demonstrate a causal link between the protected
activity and adverse employment action. Plaintiff must provide enough evidence
to allow a reasonable jury to infer that there was retaliatory intent and that the
intent to retaliate was a but-for cause of the adverse employment action. In other
words, plaintiff must demonstrate that the employer would not have taken the
adverse action absent the desire to retaliate. Nassar, 133 S. Ct. at 2533. Proof of
causation may be established in a number of ways. First, temporal proximity can
serve as circumstantial evidence “‘sufficient to raise the inference that [plaintiff’s]
protected activity was the likely reason for the adverse action.’” Kachmar v.
SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (quoting Zanders v.
Nat’l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)). “It is important
to emphasize that it is causation, not temporal proximity itself, that is an element
of the plaintiff’s prima facie case, and temporal proximity merely provides an
evidentiary basis from which an inference can be drawn.” Kachmar, 109 F.3d at
178. The “mere fact that [an] adverse employment action occurs after a complaint
will ordinarily be insufficient to satisfy the plaintiff’s burden of demonstrating a
causal link between the two events.” Robinson v. City of Pittsburgh, 120 F.3d
14
1286, 1302 (3d Cir. 1997), abrogated on other grounds by Burlington N., 548
U.S. 53. The timing must be “unusually suggestive” to raise an inference of
causation. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (internal
quotation marks omitted). Generally, a lapse of several months between the
plaintiff’s complaint and termination is not unusually suggestive of a retaliatory
motive. See Groeber v. Friedman & Schuman, P.C., 555 F. App’x 133, 136 (3d Cir.
2014) (three-month gap); Bailey v. Commerce Nat’l. Ins. Servs., Inc., 267 F.
App’x 167, 170 (3d Cir. 2008) (four-month gap); LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 232-33 (3d Cir. 2007) (three-month gap);
Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004)
(two-month gap). In contrast, a lapse of a few days suggests a retaliatory motive
sufficient to establish causation for the prima facie case. See Doe v. C.A.R.S. Prot.
Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008) (gap of three working days); Jalil v.
Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two-day gap).
Absent temporal proximity, “circumstantial evidence of a ‘pattern of
antagonism’ following the protected conduct can also give rise to the inference.”
Kachmar, 109 F.3d at 177 (quoting Zanders, 898 F.2d at 1135). Temporal
proximity and a pattern of antagonism are not the only means to prove causation;
the proffered evidence as a whole may be sufficient to raise an inference of intent.
Id.
The evidence of a causal connection between plaintiff’s protected activity
and each of the adverse employment actions is addressed below.
1. Failure to File Grievance
In September 2009, plaintiff sought to file a grievance against the City
because she believed she was owed longevity pay. (ECF No. 47, ¶ 7; ECF No. 61,
¶ 7.) The FOP declined to file the grievance. Plaintiff asserts she was never
informed the grievance was denied. (ECF No. 60, at 6.)
15
The FOP argues that plaintiff cannot show that the desire to retaliate against
plaintiff was the cause of its decision to refuse to file the grievance. (ECF No. 46,
at 10.) Plaintiff contends that she met her burden with respect to causation and
established a prima facie case of retaliation based upon the timing and sequence
of events surrounding the denial. (ECF No. 60, at 5-6.) The FOP asserts that even
if plaintiff established a prima facie case of retaliation, the FOP met its burden of
demonstrating a legitimate, nondiscriminatory reason for declining to file the
plaintiff’s grievance, namely the grievance was not warranted. (ECF No. 46, at 7.)
Plaintiff falls short of presenting evidence sufficient to raise an inference of
causation. The adverse employment action is too far removed from the plaintiff’s
protected action. Plaintiff filed her first charge of discrimination with the EEOC
in January 2008. Plaintiff sought to file a grievance for longevity pay in
September 2009. The adverse employment action, the FOP’s refusal to file the
grievance, came twenty months after the charge. This temporal proximity is not
unusually suggestive of a discriminatory motive.
2. The FOP’s Legal Fees
Plaintiff asserts that two events involving the FOP’s legal fees were in
retaliation for her charges of discrimination. (ECF No. 60, at 5-6.) At the FOP’s
meeting on February 21, 2008, membership adopted a motion that if a member
brings a complaint or suit against the FOP and the FOP “is found of no
wrongdoing, the member then must reimburse [the FOP] for the cost of the
defense.” (ECF No. 62-7.) Plaintiff contends that this action is “highly suggestive
of retaliatory intent” because it came less than a month after she filed her first
charge of discrimination against the FOP on January 14, 2008. (ECF No. 60, at
5.)
Courts have differed about whether a one-month gap is “unusually
suggestive” of animus. See Yu v. U.S. Dep’t of Veterans Affairs, 528 F. App’x 181,
16
185 (3d Cir. 2013) (finding, in the context of a Bivens action, that a nearly onemonth delay “is too long to be ‘unusually suggestive’”); Schummer v. Black Bear
Distribution, LLC, 965 F. Supp. 2d 493, 499 (D.N.J. 2013) (one month not
unusually suggestive). But see Alers v. City of Phila., 919 F. Supp. 2d 528, 552
(E.D. Pa. 2013) (finding that a gap of “barely one month” between plaintiff’s
“activity and the alleged retaliation appears unusually suggestive”). The majority
of the case law supports a conclusion that the gap is not unusually suggestive. See
Yu, 528 F. App’x at 185 (finding that “unusually suggestive” means “within a few
days but no longer than a month”).
“Where timing is close, but not unusually suggestive, courts look for other
circumstantial evidence to support a finding of causation.” Yeakel v. Cleveland
Steel Container Corp., Civil No. 09-568, 2011 WL 536536, at *4 (E.D. Pa. Feb. 15,
2011). The record is devoid of other circumstantial evidence supporting causation
with respect to this action by the FOP. The only evidence in the record related to
the membership vote is a letter from the FOP to plaintiff in February 2010, two
years later. The letter indicates that the policy was adopted for all members. (ECF
No. 62-7.) Outside of timing, plaintiff offered no evidence from which a finder of
fact could infer that this policy was directed toward plaintiff or was motivated by
retaliatory animus.6 Plaintiff may not oppose summary judgment by relying on
the bare allegations of the complaint. Saldana v. Kmart Corp., 260 F.3d 228, 232
(3d Cir. 2001).
Plaintiff also alleges that a letter from the FOP, which informed her that she
was responsible for legal fees in connection with the FOP’s defense of her 2008
6
Based upon the record, it appears that neither plaintiff nor any FOP leaders
or members were deposed in this case.
17
charge of discrimination and that her membership dues were in arrears,
demonstrates retaliatory animus. (ECF No. 60, at 6.) The letter is dated February
18, 2010, slightly less than a month after she filed her second charge of
discrimination against the FOP on January 25, 2010. Plaintiff notes that she
received the “legal bill” five months after the EEOC dismissed the charge, but
only one month after she filed her second charge of discrimination. (Id.) As set
forth above, slightly less than one month between the protected activity and
adverse action is, in general, not unusually suggestive. Moreover, the letter
appears to be in response to plaintiff putting herself forward as a candidate for
delegate in the FOP’s 2010 election. (ECF No. 62-7.) It informs her of the need to
pay outstanding charges in order to be considered “in good standing” and eligible
to stand for election. (Id.) Again, aside from pointing to the timing, plaintiff
provided no evidence of retaliatory animus.
3. Lack of Communication
Plaintiff asserts the FOP “ceased communications” with her from June 2009
to February 2010. (ECF No. 60, at 6.) As evidence of this, she provides a letter
she sent to the FOP’s attorney on October 16, 2009, and a letter she sent to the
FOP’s grievance chairman on October 28, 2009. (ECF No. 62-6.) October 2009 is
more than a year after plaintiff filed the charge of discrimination. Even assuming
that the FOP stopped communicating with plaintiff in June 2009, for which there
is no evidence of record, there is no temporal proximity to the protected activity.
There is no evidence suggesting the FOP had a policy to ignore plaintiff or did not
respond in order to retaliate against her. No reasonable jury could infer
retaliatory animus from two letters without any supporting affidavits or
testimony.
18
4. Other Evidence of Causation
Plaintiff may also establish causation by showing a “pattern of antagonism
coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The evidence before the court
does not establish a “pattern of antagonism.” Plaintiff argues that the “FOP took
ongoing, unjustified actions” against her. (ECF No. 60, at 7.) The actions she
points to, however, were widely spaced over a number of years. The record
evidence of letters from the FOP to plaintiff shows that these communications
were respectful. There is no indication of antagonism, let alone a pattern of
antagonism.
The court must also consider the record as a whole. In Kachmar, the Court of
Appeals for the Third Circuit found a district court erred by focusing only on
whether there was a temporal connection between the protected activity and
adverse employment action or a pattern of antagonism. Kachmar, 109 F.3d at
177. A district could must consider whether the record, “looked at as a whole,”
raises an inference of causation. Id. Unlike in Kachmar, which was before the
court at the motion to dismiss stage, in this case plaintiff has had the benefit of
discovery. Plaintiff cannot rely on her allegations. After reviewing the record as a
whole, the court is unable to find any evidence sufficient to support an inference
of causation by the finder of fact.
5. Conclusion
Plaintiff falls short of presenting evidence sufficient to raise an inference of
but-for causation necessary to establish a prima facie case. None of the alleged
retaliatory acts was sufficiently close in time to the protected activity to permit an
inference of retaliatory animus. Plaintiff did not present evidence showing a
pattern of antagonism. Thus, plaintiff failed to adduce sufficient evidence of butfor causation for a reasonable jury to render a verdict in her favor. As there are no
19
genuine issues of material fact in dispute, the FOP is entitled to summary
judgment.7
VI. Conclusion
The City’s motion for summary judgment (ECF No. 48) will be granted
because plaintiff waived her claims at issue by entering into the settlement
agreement. The FOP’s motion for summary judgment (ECF No. 45) will be
granted because plaintiff failed to adduce sufficient evidence to support a prima
facie case of retaliation under Title VII. An appropriate order will be entered.
Dated: August 18, 2014
7
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
In an attempt to show a disputed material fact, plaintiff points to what she
claims is contradictory evidence about plaintiff’s years of service. (ECF No.
60, at 9.) This issue relates to the FOP’s legitimate, nondiscriminatory
reason for declining to file her grievance; that is, the grievance was
meritless because she was not entitled to longevity pay. (ECF No. 46, at 78.) Because plaintiff failed to adduce sufficient evidence of causation to
support a prima facie case, the court does not reach this issue and any
dispute about plaintiff’s years of service is not material.
20
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