The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MOISE JEROME : CIVIL ACTION
:
v. :
:
PHILADELPHIA HOUSING AUTHORITY, :
et al. : NO. 19-272
MEMORANDUM
Bartle, J. January 13, 2020
Plaintiff Moise Jerome (“Jerome”) brings this action
against defendants the Philadelphia Housing Authority (“PHA”),
PHA Police Chief Joseph Marker (“Marker”), and several John and
Jane Doe defendants alleging racial and gender discrimination
and retaliation in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq., the Pennsylvania Human
Relations Act, 43 Pa. Stat. §§ 951 et seq., and the Philadelphia
Fair Practices Ordinance, Phila. Code §§ 9-1100 et seq. Jerome
also brings claims for deprivation of his equal protection and
procedural due process rights under the Fourteenth Amendment to
the United States Constitution pursuant to 42 U.S.C. §§ 1981 and
1983 and for retaliation and deprivation of his rights to free
speech and association under the First and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983.
Before the court is the motion of defendants for
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.
I
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A dispute is genuine if the evidence is such that a
reasonable factfinder could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986). We view the facts and draw all inferences in favor of
the nonmoving party. See In re Flat Glass Antitrust Litig.,
385 F.3d 350, 357 (3d Cir. 2004).
Summary judgment is granted where there is insufficient
record evidence for a reasonable factfinder to find for the
nonmovant. See Anderson, 477 U.S. at 252. “The mere existence of
a scintilla of evidence in support of the [nonmoving party]’s
position will be insufficient; there must be evidence on which the
jury could reasonably find for [that party].” Id. In addition,
Rule 56(e)(2) provides “[i]f a party fails to properly support an
assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for the purposes of the motion.”
Fed. R. Civ. P. 56(e)(2).
II
The following facts are undisputed. PHA is the
nation’s fourth largest public housing authority, owning more
than 14,000 housing units and serving nearly 80,000
Philadelphians. It maintains its own police department. Jerome
was hired by PHA as a police officer on April 21, 2017 and was
sworn in on July 5, 2017. Defendant Marker was named as Acting
Chief of the PHA Police on June 14, 2017 following the
resignation of Chief Branville Bard.
During the relevant time frame, PHA had in effect PHA
Police Department (“PHA-PD”) Directive 41, “Vehicular Pursuits,”
which provides in pertinent part:
1. An officer is justified in initiating a
vehicular pursuant only when he/she is:
a. In close proximity to a suspect vehicle
and believes as pursuit is necessary to
prevent the death or serious bodily
injury of another person, or
b. In close proximity to a suspect vehicle
and believes BOTH:
1) The pursuit is necessary to effect
the arrest or prevent escape, AND
2) The officer has probable cause to
believe that the person being pursued
has committed or attempted a forcible
felony OR, has probable cause to
believe that the person being pursued
possesses a deadly weapon, other than
the vehicle itself.
2. In all other circumstances initiating a
vehicular pursuit is strictly prohibited.
Accordingly, initiating a pursuit solely
for stolen vehicles and traffic
violations, including Driving Under the
Influence (DUI), is strictly prohibited.
The policy defines a vehicular pursuit as “[t]he use of a motor
vehicle to chase, follow, or go after a vehicle that has refused
to stop.” Directive 41 further provides that officers must
notify PHA-PD via radio of a pursuit. It also states that “all
sworn personnel involved in a pursuit in any manner” will
complete and submit within three days a “Pursuit Memorandum,”
the form for which is attached as Exhibit A to the Directive.
In addition to the PHA-PD Pursuit Memorandum, an officer
involved in a pursuit must submit to the Philadelphia Police
Department (“PPD”) an incident report known as a “75-48” and
also must provide to the Pennsylvania State Police a
“Pennsylvania Police Pursuit Report.” Jerome received a copy of
Directive 41 and signed a written acknowledgment of his receipt
on July 11, 2017.1
1. Pennsylvania law requires that police departments including
PHA-PD maintain such policies. See 75 Pa. Cons. Stat. Ann.
§ 6342. Pennsylvania statute defines “[m]otor vehicle pursuit”
as “[a]n active attempt by a police officer operating a motor
vehicle to apprehend one or more occupants of a motor vehicle
when the driver of the vehicle is resisting the apprehension by
maintaining or increasing his speed or by ignoring the police
officer’s audible or visual signal to stop.” Id. § 6341. It
further provides that “[e]ach police department shall develop
and implement a written emergency vehicle response policy
governing the procedures under which a police officer should
The PHA-PD also maintains a Disciplinary Code that
regulates the conduct of PHA-PD officers and other employees.
Article I of the Disciplinary Code identifies various conduct
that is unbecoming of a PHA-PD employee, including “[k]knowingly
and willfully making a false entry in any Department record or
report.” Article V delineates conduct that constitutes neglect
of duty, including “[f]ailure to make required written report”
and “[f]ailure to comply with any Chief of Police’s orders,
directive, memorand[a], or regulation; or any oral or written
orders of superiors.” The Disciplinary Code in Article VII also
describes conduct that constitutes motor vehicle violations
including the “[f]ailure to follow Departmental procedures
involving pursuit and/or emergency driving.” Under the Code,
the PHA Chief of Police and Human Resources are permitted to
impose discipline up to and including termination for
disciplinary violations.
During his employment, Jerome was a member of a union,
the Fraternal Order of Housing Police. The union and the PHA
had a collective bargaining agreement (“CBA”) in place during
Jerome’s employment. The CBA provides that except in the case
of counseling and verbal warnings, an employee and the union
shall be provided with written notice of intended discipline,
initiate, continue and terminate a motor vehicle pursuit” and
sets out guidelines for such pursuit policies. Id. § 6342.
including the offense alleged, the type and duration of the
discipline, and the intended effective date of the discipline.
In situations where the intended discipline is discharge, the
employee shall receive a ten-day suspension with notice of the
intent to discharge. The employee has an opportunity to file a
grievance and have a hearing. The discharge does not become
effective until the grievance procedure is completed or the
parties otherwise resolve the matter.
On July 13, 2017, Jerome was assigned to a patrol
vehicle with PHA-PD officer Shania Baylis (“Baylis”). Baylis
acted as the driver while Jerome was the recorder, that is, he
was responsible for paperwork during the patrol. At
approximately 1:28 p.m., Jerome and Baylis were sitting in their
patrol vehicle at 55th and Vine Streets in Philadelphia when
they witnessed a blue Jeep Cherokee run a stop sign. Baylis
activated the patrol vehicle’s lights and siren but the Cherokee
did not stop. Baylis and Jerome proceeded to follow the
Cherokee in their patrol vehicle to 53rd and Market Streets,
where the Cherokee collided with two other cars. After the
collision, the driver of the Cherokee exited the vehicle and
started running. Jerome chased the driver on foot to 50th and
Arch Streets, where he was apprehended. Neither Jerome nor
Baylis notified PHA-PD via radio of the pursuit.
Thereafter, Jerome returned to the scene of the
accident where Baylis instructed him to complete a 75-48
Incident Report, which, as stated above, is a paper form used by
the PPD as well as the PHA-PD. Plaintiff initially wrote the
following on what he describes as a “rough draft” of the 75-48
Incident Report:
On 7/13/17 P/O Baylis #2081 and P/O Jerome
#2111 was [sic] working in a marked vehicle
reading 9610 working west division. At
approximately 1:29 p.m. Officer Baylis and
P/O Jerome was [sic] parked at 55th Vine
intersection facing north when they spotted
a blue Jeep Cherokee disregard a stop sign
heading eastbound on Vine from 55th Street.
As police activated her emergency lights and
sirens in attempt to do a vehicle stop the
operator of the Blue Jeep continued on
driving Eastbound on Vine while making a
sharp turn onto 54th Street heading South
Bound from Vine Street. Both police
officers went over City Radio and PHA Radio
to advise them of the situation. Police
lost sight of the vehicle on 54th Street
going south from Vine Street. Police
surveyed for the vehicle to keep city Radio
advised of the Reckless driving. . . .
Baylis then reviewed the 75-48 Incident Report and
advised Jerome that it was too long. Jerome placed the draft in
his book bag and started a second 75-48. On this second 75-48
Incident Report, Jerome wrote:
Pursuit – on above date and time and
location P/O attempted to stop Below
off[ender] because of a traffic violation
off[ender] Refused to stop his MV P/O was
able to keep off[ender] MV in site [sic].
Offender was observed By P/O running a stop
light and subsequently crashed into two
other MV.
Jerome and Baylis’s supervisor that day was Sergeant
Jerome Darby (“Darby”). Darby was called to the scene of the
accident where he spoke to PPD officers and learned that the
incident was being coded as a vehicle pursuit by the PPD.
Accordingly, he advised Jerome and Baylis that a PHA-PD Pursuit
Memorandum was required. However, Darby never followed up to
determine if either officer completed the Pursuit Memorandum.
Darby appears to have submitted a memorandum describing the
incident as a “vehicle stop” and “arrest.” Darby’s version of
the events states that Baylis and Jerome lost sight of the
Cherokee and that the driver of the Cherokee was apprehended
“[a]fter a short foot pursuit.” He did not mention any vehicle
pursuit by Jerome and Baylis.
Jerome delivered a paper copy of the 75-48 Incident
Report to the PPD. Jerome concedes he did not complete a PHA-PD
Pursuit Memorandum as required under Directive 41. Baylis was
told to complete a PHA-PD Pursuit Memorandum but also did not do
so. Baylis resigned her employment with PHA on December 17,
2017.
On or about May 31, 2018, the driver of the car that
was hit by the driver of the Cherokee pursued by Baylis and
Jerome filed a personal injury lawsuit against PHA, Jerome,
Baylis and others in the Court of Common Pleas of Philadelphia
County.2 Upon learning of the lawsuit, Marker requested that
PHA’s Office of Audit and Compliance (“OAC”) conduct an
investigation regarding the incident.
As part of the investigation, OAC interviewed Jerome
as well as Baylis, Sergeant Darby, who was their supervisor on
duty that day, Lieutenant Hakim Dunbar (“Dunbar”), the
Lieutenant on duty that day, and several other PHA-PD officers.
When asked by the OAC investigators why he was being
interviewed, Jerome replied “I guess that pursuit that happened
about, almost a year ago, July 13th.” He further admitted that
on that day he and Baylis observed a blue Cherokee run a stop
sign, they had activated the siren and lights of their patrol
vehicle in an attempt to stop the fleeing car, the car had not
stopped, and they had followed the car. He also stated that
they had temporarily lost sight of the Cherokee but later found
the Cherokee on 53rd Street backing up. Jerome was then shown
the 75-48 Incident Report he had submitted to the PPD, which
stated that the officers were able to keep the vehicle in sight.
In response, Jerome produced from his bookbag the first 75-48
Incident Report that he had drafted but not submitted, which
noted that the officers had lost sight of the vehicle.
2. That action was removed to this court but has since been
remanded back to the Court of Common Pleas. See Price v. Grant,
No. 18-2311 (E.D. Pa.).
The OAC completed its investigation on August 7, 2018.
It found that Baylis and Jerome engaged in a vehicular pursuit
after observing the Cherokee commit a traffic violation by
running a stop sign and that the officers failed to complete the
paperwork required for vehicular pursuits, in contravention of
Directive 41. It further concluded that Sergeant Darby was
aware of the pursuit but failed to follow up with the officers
to ensure that the paperwork was completed and failed to notify
his immediate supervisor, Lieutenant Dunbar, that the pursuit
had occurred.
On September 19, 2018, Antoinette Eberhart
(“Eberhart”), the Deputy Chief of PHA-PD, requested that Jerome
be charged with the following violations of the PHA-PD
Disciplinary Code: (1) Article I, Conduct Unbecoming, for
“[k]nowingly and willfully making a false entry in any
Department record or report”; (2) Article V, Neglect of Duty,
for “[f]ailure to comply with any Chief of Police’s orders,
directive, memorand[a], or regulation”; and (3) Article V,
Neglect of Duty, “[f]ailure to make required written report.”
Eberhart recommended that Jerome be suspended immediately with
the intent to dismiss. Sergeant Darby was suspended for ten
days for his failure to supervise Baylis and Jerome.
On September 22, 2018, while the request for
discipline was pending, Jerome was placed on restricted duty.
Jerome was notified of the discipline both in a written
“Notification of Restricted Duty and Pending Disciplinary
Action” and in a meeting at which his union representative was
present. The Notification listed the specific provisions of the
PHA-PD Disciplinary Code that Jerome had allegedly violated and
further noted that Jerome had been given the opportunity to ask
questions but had declined to do so. Jerome signed an
acknowledgment that he had received the Notification.
On September 28, 2018, Jerome was presented with a
“Notice of Suspension” which again notified him that he was
being suspended with the intent to discharge for the violations
of PHA-PD Disciplinary Code cited by Eberhart, as well as
Article VII, Motor Vehicle Violations, for “[f]ailure to follow
departmental procedures involving pursuit and/or emergency
driving.” The Notice was read to Jerome at a meeting with his
union representative as well as Eberhart and PHA-PD Inspector
William Britt. Jerome was offered the opportunity to speak and
to ask questions but declined to do so.
Thereafter, Jerome’s union filed a grievance
challenging his discipline. A grievance hearing was held on
October 11, 2018. Jerome attended the hearing but did not speak
based on the advice of his union representative. The grievance
was denied and Jerome’s termination was upheld. Jerome was
terminated on October 31, 2018. Jerome received from PHA a
“Termination of Employment” letter again informing him of the
specific provisions of the PHA-PD Disciplinary Code he had been
found to have violated as well as the factual basis for his
termination. He currently is scheduled to arbitrate his
termination in February 2020.
III
We begin with Jerome’s claim for gender and racial
discrimination under Title VII, the PHRA, and the Philadelphia
Fair Practices Ordinance in Counts II, VI, and VII of the
complaint. Specifically, Jerome asserts that he was suspended
and then terminated by PHA due to his gender and race. Title
VII provides in relevant part:
It shall be an unlawful employment practice
for an employer . . . 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 individual’s
race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a)(1).
To defeat summary judgment on his claims for
discrimination on this basis of gender and race, Jerome must
satisfy the three-step burden-shifting inquiry laid out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).3
3. We analyze Jerome’s claims under Title VII, the PHRA, and
the Philadelphia Fair Practices Ordinance in an identical
He must first produce evidence of the following to make out his
prima facie case: (1) he is a member of a protected class;
(2) he was qualified for the position of patrol officer; (3) he
suffered an adverse employment action; and (4) the action
occurred under circumstances that could give rise to an
inference of intentional discrimination. See Makky v. Chertoff,
541 F.3d 205, 214 (3d Cir. 2008) (citing McDonnell Douglas
Corp., 411 U.S. at 802). Throughout the analysis, “[t]he
central focus of the prima facie case is always whether the
employer is treating some people less favorably than others
because of their race, color, religion, sex, or national
origin.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d
Cir. 2003) (internal quotations and citation omitted).
If Jerome succeeds in making out a prima facie case,
the burden of production then shifts to defendants to come
forward with a legitimate, nondiscriminatory reason for Jerome’s
termination. See Makky, 541 F.3d at 214; Scheidemantle v.
Slippery Rock Univ., 470 F.3d 535, 539 (3d Cir. 2006). If
defendants are able to provide such a reason, the burden of
production shifts back to Jerome to produce evidence that the
proffered reason is merely a pretext for actual discrimination.
See Fuentes v. Perskie, 32 F.3d 759, 763-64 (3d Cir. 1994)
manner. See, e.g., Scheidemantle v. Slippery Rock Univ., 470
F.3d 535, 539 n.5 (3d Cir. 2006); Vandegrift v. City of Phila.,
228 F. Supp. 3d 464, 486 n.206 (E.D. Pa. 2017).
(citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11
(1993)). At all times the ultimate burden of persuasion rests
with the plaintiff, Jerome. See id. at 763 (citing Texas Dep’t
of Comm. Affairs v. Burdine, 450 U.S. at 253, 254, 256 (1981)).
There is no dispute that Jerome is a member of a
protected class, that he was qualified for the position of
patrol officer, and that his termination constituted an adverse
employment action. Thus, we will focus our inquiry on the
fourth prong of the prima facie case, that is, whether Jerome’s
termination occurred under circumstances that could give rise to
an inference of intentional discrimination on the basis of
gender and race.
After reviewing the record, we conclude that Jerome
has produced no evidence that his termination occurred under
circumstances that could give rise to an inference of gender
discrimination. Jerome has put forth two female PHA-PD officers
who he asserts were similarly situated but received more
favorable treatment: (1) Baylis, his partner at the time of the
pursuit; and (2) PHA-PD officer A’Tia Brooks (“Brooks”). An
inference of discrimination may be drawn from evidence that a
similarly situated employee outside the protected class was
treated more favorably. Simpson v. Kay Jewelers, 142 F.3d 639,
645 (3d Cir. 1998). “While ‘similarly-situated’ does not
necessarily mean identically situated, the plaintiff must
nevertheless be similar in ‘all relevant respects.’” Collins v.
Kimberly-Clark Pa., LLC, 247 F. Supp. 3d 571, 589 (E.D. Pa.
2017) (quoting Opsatnik v. Norfolk S. Corp., 335 F. App’x 220,
222–23 (3d Cir. 2009)). Demonstrating that employees are
similarly situated often includes a “showing that the two
employees dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct without such
differentiating or mitigating circumstances as would distinguish
their conduct or the employer’s treatment of them.” Id. at
589-90 (quoting Opsatnik, 335 F. App’x at 223).
With regard to Baylis, Jerome is correct that she was
previously similarly situated to Jerome. However, Baylis
resigned her employment with PHA in December 2017, several
months before PHA investigated the vehicle pursuit at issue and
thus could not have been terminated by PHA like Jerome. She is
not an appropriate comparator. See, e.g., Dill v. Runyon, No.
96-3584, 1997 WL 164275, at *4 (E.D. Pa. Apr. 3, 1997).
As for Brooks, PHA records show that, on August 16,
2016, Brooks spotted a white Ford Explorer driving recklessly on
Fairmount Avenue between 47th and 48th Streets in Philadelphia.
Brooks then
activated her emergency lights and attempted
to stop the vehicle. Seconds later, the
Explorer drove into the intersection and hit
another vehicle. Upon the Explorer coming
to a stop at 48th and Brown St. the two male
occupants exited the vehicle and ran away
from the scene, with Officer Brooks in foot
pursuit.
(emphasis added). Thus, Brooks attempted to stop a vehicle but
followed it for mere seconds and less than one city block. She
then pursued the suspect on foot. This is not comparable
conduct to Jerome, who engaged in a vehicular pursuit for
several city blocks, ending in a crash which caused injuries to
third parties. Further, Brooks completed a Pursuit Memorandum
about the event and did not otherwise attempt to cover up the
incident as Jerome did.
While Jerome also alleges racial discrimination in his
complaint, he has produced no evidence of such discrimination.
Jerome, who is African American, has not pointed to any PHA-PD
officers who are of a different race and engaged in similar
conduct but received more favorable treatment. The two
comparators he has pointed to in support of his gender
discrimination claim and whom he claims engaged in similar
conduct but received more favorable treatment, Baylis and
Brooks, are both African American. Defendants, meanwhile, have
pointed to Jacqueline Hampshire and Christian Jablonski, two
Caucasian PHA-PD officers, who engaged in a vehicular pursuit
while on duty on March 9, 2016 and who were suspended and then
terminated by PHA. See Hampshire v. Phila. Housing Auth.,
No. 17-4423, 2019 WL 652481, at *1-5 (E.D. Pa. Feb. 14, 2019).
Moreover, Jerome stated during his deposition in this matter
that he is not claiming discrimination on the basis of race.
Even assuming that Jerome had satisfied his prima
facie case, defendants have pointed to a legitimate,
nondiscriminatory reason for his terminations. No reasonable
factfinder could conclude that Jerome was terminated for any
reason other than his violation of PHA policies, most
importantly Directive 41 which prohibited officers from engaging
in vehicular pursuits. There is no genuine dispute that Jerome
engaged in the pursuit and that such conduct was in violation of
Directive 41.4 Jerome has referred to the incident as a pursuit
and has admitted that he and Baylis followed the Cherokee with
the siren and lights of their patrol vehicle activated. Simply
put, Jerome has failed to produce any evidence to create a
genuine dispute of material fact regarding whether the reasons
offered by PHA for his termination were pretextual.
4. Jerome erroneously asserts that Directive 41 is inapplicable
because it has been “superseded” by state law, citing section
6342(f) of the Pennsylvania Motor Vehicle Code. That section
provides “[n]o police departmental policy may violate or
supersede the requirements of section 3105 (relating to drivers
of emergency vehicles).” 75 Pa. Cons. Stat. Ann. § 6342(f).
Section 3105 outlines the special privileges afforded to the
operators of emergency vehicles, such as the ability to proceed
past red lights and to exceed speed limits. 75 Pa. Cons. Stat.
Ann. § 3105. It does not address the circumstances under which
an officer such as Jerome can initiate a vehicular pursuit and
does not conflict with Directive 41.
Accordingly, the court will grant the motion of
defendants for summary judgment as to Jerome’s claims for gender
and racial discrimination under Title VII, the PHRA, and the
Philadelphia Fair Practices Ordinance in Counts II, VI, and VII
of the complaint.
IV
Jerome has also claimed in Counts II and VI that he
was subjected to a hostile work environment while employed by
PHA in violation of Title VII and the PHRA. To proceed with his
claim of hostile work environment, Jerome must come forward with
evidence that: (1) he suffered intentional discrimination
because of his race and/or gender; (2) the discrimination was
severe or pervasive; (3) the discrimination detrimentally
affected him; (4) the discrimination would detrimentally affect
a reasonable person in like circumstances; and (5) the existence
of respondeat superior liability. Castleberry v. STI Grp., 863
F.3d 259, 263 (3d Cir. 2017) (citing Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 167 (3d Cir. 2013)).
Jerome has not met his burden to establish a prima
facie case of hostile work environment because he has not
produced evidence to support the second element, that is, that
he suffered discrimination that was severe or pervasive. To
show severe or pervasive discrimination, Jerome must produce
evidence that the environment at PHA was “permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions
of [his] employment and create an abusive working environment.”
Culler v. Sec’y of U.S. Veterans Affairs, 507 F. App’x 246, 249
(3d Cir. 2012) (quoting Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 116 (2002)).
In support of his hostile work environment claim,
Jerome alleges that he was “threatened in rollcall” by
Lieutenant Dunbar. Jerome did not provide any details regarding
the substance or timing of this interaction and has not pointed
to any other instances of hostile treatment during his
employment. This one vague interaction is insufficient to
create a genuine dispute of material fact and thus we will grant
defendants’ summary judgment motion with respect to Jerome’s
hostile work environment claim.5
V
We turn next to Jerome’s claim of retaliation in
violation of Title VII in Count I of the complaint. To state a
prima facie case of retaliation, Jerome must demonstrate that:
(1) he engaged in a protected activity; (2) defendants took
adverse action against him; and (3) there was a causal link
5. To the extent Jerome cites his suspension and termination as
evidence of hostile work environment, he conflates such claim
with his disparate treatment discrimination claim, which fails
for the reasons discussed above. See Abramson v. William
Paterson Coll. of N.J., 260 F.3d 265, 281 n.11 (3d Cir. 2001).
between the protected activity and the adverse action. Abramson
v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir.
2001). A causal connection may be shown by “an unusually
suggestive temporal proximity between the protected activity and
the allegedly retaliatory action” or “a pattern of antagonism
coupled with timing to establish a causal link.” Gera v. Cnty.
of Schuylkill, 617 F. App’x 144, 147 (3d Cir. 2015). If Jerome
articulates his prima facie case, the burden shifts to
defendants to articulate a legitimate, non-discriminatory reason
for its conduct. See Carvalho-Grevious v. Del. State Univ., 851
F.3d 249, 257 (3d Cir. 2017).
Jerome’s retaliation claim fails because he did not
engage in protected activity that was casually connected to his
suspension and termination. The undisputed facts presented here
show that PHA-PD Deputy Chief Eberhart requested that Jerome be
suspended for ten days with a recommendation for discharge on
September 19, 2018. While the request was pending, Jerome was
placed on restricted duty on September 22, 2018. Jerome
thereafter, on September 27, 2018, submitted to the President
and Chief Executive Officer of PHA and defendant Marker a
“Notification” memorandum stating in part:
3. A Charge of Employment Discrimination is
made, because of race, gender, hostile
work environment, and retaliation for
aiding in or participating in a complaint
of employment discrimination.
4. An EEOC, Phila. Office, Form 5 Charge for
employment discrimination, because of
race, gender, a hostile work environment,
and retaliation is in process. Respondent
includes but is not limited to PHA and
supervisor and management of PHA and
PHAPD.
5. Witness status and providing truthful
sworn testimony in a federal
discrimination lawsuit involving PHA and
former PHA police chief Bard and VP
Director of Human Resource J. Strauss is
disclosed. Disclosure as to the assigned
trial judge and PHA, Bard and Strauss
through PHA’s counsel in the
discrimination lawsuit.
At the time of this “Notification,” Jerome had already been
placed on restricted duty and notified that he would be
suspended with a recommendation for discharge based on his
violations of the PHA disciplinary code and PHA policy,
including Directive 41 prohibiting vehicular pursuits. He had
not filed any charge of discrimination with the EEOC. While the
“Notification” appears to suggest that Jerome intended to act as
a witness in an employment discrimination action brought against
PHA by two former PHA employees who were also represented by
Jerome’s counsel, Jerome had not been identified on a witness
list nor actually submitted an affidavit or other sworn
testimony in that action before he was notified of his impending
suspension with the recommendation for discharge.6 Although
Jerome claims he was going to support those plaintiffs in their
suit against PHA, he was not employed by PHA during the same
period as those plaintiffs, has never spoken to them, and thus
has no first-hand knowledge of the circumstances surrounding
their employment and discharge.
Furthermore, Jerome’s claim for retaliation fails
because defendants have articulated a legitimate,
nondiscriminatory reason for his discharge. As stated above,
Jerome was terminated for his violations of the PHA disciplinary
code and PHA policy, including Directive 41 prohibiting
vehicular pursuits. There can be no dispute that Jerome did, in
fact, engage in such pursuit and that he failed to complete the
required paperwork, in violation of Directive 41. Jerome’s
attempt to escape the consequences of his actions by submitting
the “Notification” after he had already been investigated and
placed on restricted duty with notice of his impending
suspension with a recommendation for discharge cannot raise a
genuine issue of material fact as to whether PHA’s reason for
6. Jerome has submitted a declaration in which he asserts that
sometime in July 2018 he came forward to his union and to
counsel for plaintiffs in the Hampshire matter, who now
represents Jerome in this action. However, Jerome has produced
no evidence that the relevant decisionmakers at PHA were aware
of his interaction with the union and plaintiffs’ counsel.
the discharge was pretextual or was more likely than not
retaliatory.7 See Fuentes, 32 F.3d at 763.
Accordingly, the motion of defendants for summary
judgment will be granted as to Jerome’s claim in Count I of the
complaint for retaliation in violation of Title VII.
VI
In Count III of the complaint, Jerome contends that
defendants deprived him of his right under the Fourteenth
Amendment to the United States Constitution to procedural due
process in violation of 42 U.S.C. §§ 1981 and 1983. The
Fourteenth Amendment provides in relevant part:
No State shall make or enforce any law which
shall abridge the privileges or immunities
of citizens of the United States; nor shall
any State deprive any person of life,
liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the
laws.
U.S. Const. amend. XIV, § 1. To state a claim for deprivation
of procedural due process, a plaintiff must allege that:
“(1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of
‘life, liberty, or property’[;] and (2) the procedures available
7. To the extent Jerome contends that his retaliation claim
should survive because his termination may have been based on
“mixed motives,” such theory is inapplicable to retaliation
claims. See, e.g., Egan v. Del. River Port Auth., 851 F.3d 263,
273 (3d Cir. 2017).
to him did not provide ‘due process of law.’” Hill v. Borough
of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (citing Alvin v.
Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Here, there is no
dispute that Jerome was a public employee with a property
interest in his employment.
“An essential principle of due process is that a
deprivation of life, liberty, or property ‘be preceded by notice
and opportunity for hearing appropriate to the nature of the
case.’” Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542
(1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 313 (1950)). The Supreme Court has instructed that
due process requires a “pretermination opportunity to respond,
coupled with post-termination administrative procedures.” Id.
at 547-48. The pretermination hearing “need not be elaborate.”
Id. at 545. Instead,
[t]he tenured public employee is entitled to
oral or written notice of the charges
against him, an explanation of the
employer’s evidence, and an opportunity to
present his side of the story. To require
more than this prior to termination would
intrude to an unwarranted extent on the
government’s interest in quickly removing an
unsatisfactory employee.
Id. at 546 (internal citations omitted).
The undisputed evidence presented here shows that, on
September 22, 2018, Jerome attended a meeting with Lieutenant
Dunbar and his union representative at which Jerome was
presented with a “Notification of Restricted Duty and Pending
Disciplinary Action.” The notice cited the specific policies
that Jerome was alleged to have violated. Jerome was provided
an opportunity to speak but declined to do so. Jerome signed
the Notification to acknowledge his receipt. The Notification
was the result of a thorough investigation by the PHA-OAC during
which Jerome and others were interviewed.
Thereafter, on September 28, 2018, Jerome attended a
second meeting at which he was presented with a “Notice of
Suspension” in the presence of his union representative. That
Notice again laid out the specific policy violations allegedly
committed by Jerome as well as the factual basis for the
discipline. The Notice was read to Jerome and he was provided
an opportunity to speak but declined to do so.
Jerome’s union then filed a grievance regarding his
suspensions. A grievance hearing was held on October 11, 2018.
Jerome attended the hearing but did not speak on the advice of
his union representative. After reviewing the evidence, the
grievance officer upheld PHA’s decision to discipline Jerome.
Jerome’s termination did not become effective until after the
grievance procedure was completed, on October 31, 2018. The
union has filed a request for arbitration, which has been
scheduled for February 4, 2020.
Thus, the undisputed record demonstrates that Jerome
was provided with written and oral notice of the charges against
him and PHA’s intent to discipline him. He was also given an
opportunity to respond, which he declined. The fact that Jerome
chose not to speak or ask questions at certain junctures of this
process does not mean that he was deprived of the opportunity to
respond. See Gniotek v. City of Phila., 808 F.2d 241, 245 (3d
Cir. 1986).
The CBA entered into by PHA and Jerome’s union
provides that an employee shall be provided with written notice
of intended discipline, including the offense alleged, the type
and duration of the discipline, and the intended effective date
of the discipline. In situations where the intended discipline
is discharge, the employee shall receive a ten-day suspension
with notice of the intent to discharge. The employee has an
opportunity to file a grievance and have a hearing. The
discharge does not become effective until the grievance
procedure is completed or the parties otherwise resolve the
matter. As outlined above, there can be no dispute that
defendants followed the disciplinary process outlined in this
agreement. The process outlined in the CBA provided adequate
opportunity for Jerome to challenge his proposed termination and
to obtain meaningful review prior to his termination and thus
satisfies the due process clause. See Dykes v. Se. Pa. Transp.
Auth., 68 F.3d 1564, 1565, 1571-72 (3d Cir. 1995); Ruff v. Long,
111 F. Supp. 3d 639, 648 (E.D. Pa. 2015).
Based on the record before the court, there can be no
dispute that Jerome received sufficient due process.
Accordingly, we will grant defendants’ motion for summary
judgment as to Count III of the complaint.8
VII
In Count IV of the complaint, Jerome asserts that
defendants retaliated against him for exercising his rights to
free speech and free association in violation of the First and
Fourteenth Amendments to the United States Constitution. The
First Amendment provides: “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. Public
employees such as Jerome are entitled to exercise their rights
under the First Amendment without fear of retaliation by their
employer. See Brennan v. Norton, 350 F.3d 399, 412 (3d Cir.
2003). To defeat summary judgment on this claim, Jerome must
come forward with evidence that: (1) he engaged in conduct
protected under the First Amendment; (2) PHA retaliated against
him; and (3) that a causal connection exists between the
8. To the extent that Jerome asserts any violation of his
substantive due process or equal protection rights on the basis
of race and/or gender, those claims fail for the reasons
discussed above.
protected conduct and the retaliatory action.9 Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006); see also
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).
In support of this claim, Jerome maintains that PHA
violated his constitutional rights and retaliated against him
for coming forward as a witness in Hampshire v. Philadelphia
Housing Authority, a matter previously pending in this court.10
See No. 17-4423 (E.D. Pa.). However, Jerome’s claims fail
because he has not produced evidence that defendants retaliated
against him because of his alleged status as a witness in
Hampshire or otherwise interfered with his ability to provide
testimony in that action. As discussed above, Jerome submitted
his “Notification” memorandum to Eberhart on September 27, 2018.
In it, he stated that he had “[w]itness status and [was]
providing truthful sworn testimony in a federal discrimination
lawsuit involving PHA.” This was well after the conclusion of
the OAC investigation regarding his conduct and after he had
already been notified that PHA was suspending him with the
9. To the extent Jerome premises this claim on violation of the
Fourteenth Amendment, it is “functionally equivalent” to our
First Amendment analysis. See Hill, 411 F.3d at 125-26.
10. On February 14, 2019, this court entered summary judgment
in favor of defendants on the employment discrimination and
other claims of plaintiffs Jacqueline Hampshire and Christian
Jablonski, two former employees of PHA-PD. On November 25,
2019, our Court of Appeals affirmed this judgment. See
Hampshire v. Bard, No. 19-1565, 2019 WL 6273432 (3d Cir. Nov.
25, 2019).
intent to discharge him. There can be no dispute that Jerome
was terminated not because of his intent to aid the plaintiffs
in Hampshire but instead due to his violations of PHA
disciplinary code and policy, including Directive 41.
Accordingly, the motion of defendants for summary
judgment on Count IV of the complaint will be granted.11
11. In opposition to defendants’ motion for summary judgment,
Jerome has requested leave to amend his complaint to name
Eberhart as a defendant. Defendants identified Eberhart as an
individual who possessed knowledge about this action in their
initial disclosures served on May 29, 2019 and thus plaintiff’s
request after a summary judgment motion has been filed is
untimely. Regardless, because we are granting defendants’
motion for summary judgment, we will deny plaintiff’s motion to
amend.