CHAMBERS v. COMMONWEALTH OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL CHAMBERS, CIVIL ACTION

Plaintiff,

v.

COMMONWEALTH OF NO. 19-2867

PENNSYLVANIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Michael Chambers alleges that Defendants the Commonwealth of Pennsylvania

and the Pennsylvania State Police (“PSP”) unlawfully retaliated against him for participating in

investigations and filing complaints related to purported discriminatory employment practices.

He brings suit against Defendants pursuant to Title VII, 42 U.S.C. § 2000e, and the Pennsylvania

Human Relations Act (“PHRA”), 42 Pa. Stat. § 951. He also raises retaliation claims against six

individual PSP officers pursuant to 42 U.S.C. § 1981. All Defendants move for summary

judgment on the claims against them.

I. FACTUAL BACKGROUND

Plaintiff Michael Chambers was hired by the PSP in 1993. Although now retired, while

employed, Plaintiff participated, as a witness or complainant, in numerous investigations

conducted by the PSP’s Equal Employment Office (“EEO”), an internal office for handling

employment disputes housed within the Equity and Inclusion Office (“EIO”). Twice, Plaintiff

served as a witness, first in 2015 in support of then-Lieutenant Gary Dance, who alleged race

discrimination. The second time, in June 2016, he was again a witness in an EEO complaint

filed by Dance, this time against another Lieutenant for making an anti-Semitic joke during an

EEO training.

Plaintiff was promoted three times during his career, most recently in 2012, when he was

promoted to Sergeant—but after that, even though he was recommended to move to the next

position in the chain of command, he was never promoted to Lieutenant. He contends the reason

he was not promoted was because of his participation in the EEO proceedings. On February 6,

2017 he filed an EEO complaint of his own making that allegation. He pointed to six rounds of

promotions in which he was overlooked that occurred between when he was first a witness in an

EEO investigation and when he filed the complaint. Five days after the first complaint was filed,

on February 11, 2017, his supervisor, Major Maynard Gray, declined to recommend Plaintiff for

a promotion, and Plaintiff was again passed over.

Plaintiff further asserts that, one week after he filed the complaint, in retaliation for his

doing so, Defendant Lisa Christie (Deputy Commissioner of Administration and Professional

Responsibility) scheduled him for a random drug test, despite the fact that he had never been

subjected to a drug screening previously. Evidently, the drug test did not happen.

Additionally, according to Plaintiff, in March 2017, Defendant William Brown, Christie’s

executive officer, surveilled him on Christie’s orders. The context of this assertion is as follows:

Plaintiff and fiancé, another PSP officer, were assisting in examining cadet applicants. In the

midst of their doing so, Brown accused Plaintiff of violating a “nepotism policy” because he was

working with his fiancé. Brown then told Christie about the “violation” and also threatened to

text human resources. Later that day, Brown talked to Plaintiff about the EEO complaint. Both

Brown and Plaintiff acknowledge that the conversation occurred—but they diverge on the

details. Plaintiff says Brown raised the complaint and knew about it before talking to him.

Brown says, quite to the contrary, he learned about if for the first time from Plaintiff in that

Plaintiff accused him of retaliating because of the “lawsuit against the department, . . . against

your boss.”

On March 14, 2017, Plaintiff filed another EEO complaint (which was subsequently

consolidated with his still-pending first complaint) documenting the alleged attempted drug

testing and surveillance during the cadet examinations. And, on March 16, 2017, Plaintiff filed a

Complaint with the federal Equal Employment Opportunities Commission (“EEOC”), which he

simultaneously filed with the Pennsylvania Human Relations Commission (“PHRC”), discussing

the times he was denied promotion in 2016 and 2017.

Around the same time, in March 2017, Plaintiff’s Commander recommended him for

promotion to Major Gray. Major Gray ultimately recommended three Sergeants for promotion

to Lieutenant, including Plaintiff as his third choice. On June 17, 2017, fifteen Sergeants were

promoted to Lieutenant, none of whom were recommended by Gray.

In July 2017, Plaintiff received notice from Defendant Thomas Tran, the Commander of

the EEO who directly managed investigations, that the EEO Office concluded their investigation

into his consolidated complaint and found no retaliation. That November, Plaintiff filed another

complaint with the EEO, alleging that the failure to promote him in June was retaliation for

“identifying discriminatory promotional practices and, filing an EEO against the PSP for same.”

In December, Plaintiff filed a grievance pursuant to the PSP’s Collective Bargaining Agreement.

On January 5, 2018, Major Gray recommended four Sergeants for promotion and

included Plaintiff as his fourth choice. Along with fourteen others, Gray’s first and second

choices were promoted to Lieutenant the following month. Also in that round of promotions,

Brown was elevated from Lieutenant to Captain as well as to be the director of the PSP’s Equity

and Inclusion Office which houses the EEO.

Between February 21 and February 24, 2018, Plaintiff filed four more EEO complaints,

alleging that the promotion of Brown (against whom Plaintiff has filed previous complaints), the

failure to promote Plaintiff, and the decision to promote an allegedly less qualified officer over

Plaintiff were retaliation for his EEO complaints and grievances. At the same time, he filed two

more grievances pursuant to the Collective Bargaining Agreement. Finally, on February 26,

2018, Tran sent Plaintiff notice that the EEO Office concluded their investigation into his second

complaint and found no retaliation.

In March of 2018, Plaintiff retired from the PSP. Since retiring, Plaintiff filed a Second

EEOC Complaint on August 22, 2018, regarding the February promotions. Then, on October 22,

2018, he filed a Third EEOC Complaint regarding the promotion of Brown, “an employee [he]

filed multiple internal and external EEO complaints against . . . to be in charge of Respondents

EEO section.”

II. LEGAL STANDARD

Summary judgment is appropriate only if “there exists no genuine issue of material fact

that would permit a reasonable jury to find for the nonmoving party.” Miller v. Ind. Hosp., 843

F.2d 139, 143 (3d Cir. 1988). An issue is “genuine” if a reasonable jury could possibly hold in

the non-moving party’s favor with regard to it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). A fact is “material” if it could affect the result of suit under governing law. Id. at

248. In evaluating a summary judgment motion, all facts must be viewed in the light most

favorable to the nonmoving party, and any reasonable inferences must be made in their

favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

III. DISCUSSION

Plaintiff contends that the numerous times he was denied a promotion, the attempted drug

test, the surveillance of him at the cadet exam, the promotion of Brown to head the EIO and the

failure to properly investigate his internal EEO complaints were all in retaliation for his

participation as a witness in the investigations into Dance’s EEO complaints.

A. Plaintiff Lacks a Remedy Against the Individual Defendants Under Section 1981

Plaintiff brings his claims against the individual Defendants pursuant to 28 U.S.C. §

1981, alleging that, by retaliatorily denying him promotions due to his involvement in EEO

proceedings, they discriminated against him “with regard to the terms and conditions of his

employment.” Under Section 1981, all “persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and enforce contracts, to sue, be parties,

give evidence, and to the full and equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens. . . .” 42 U.S.C. § 1981(a) (1991).

However, Section 1981 only applies to private actors. See McGovern v. City of

Philadelphia, 554 F.3d 114, 116 (3d Cir. 2009) (citing Jett v. Dall. Indep. Sch. Dist., 491 U.S.

701, 723, 735 (1989)). The individual Defendants are employees of the state. And, when

individuals “abuse[] a power or position granted by the state,” they are considered to be acting

“under color of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citing

Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997)). Thus, state employment

decisions, like the ones of which Plaintiff complains, are made under the color of state law. See

Hafer v. Melo, 502 U.S. 21, 27-28 (1991) (“The requirement of action under color of state law

means that Hafer may be liable for discharging respondents precisely because of her authority as

auditor general.”). Section 1983, which governs state actors, rather than Section 1981, provides

the remedy for individuals when state actors, acting under the color of law, deprive plaintiffs of

their rights under Section 1981. See McGovern, 554 F.3d at 116. Because it is not disputed that

the individual defendants were all, at the time of the alleged retaliatory non-promotion,

employees of the PSP acting as such, Plaintiff has no cause of action against them under Section

1981, and the individual Defendants are entitled to summary judgment on all of these claims.

See id.

B. Statute of Limitations Issues

The institutional Defendants argue that some of the alleged retaliatory actions are time-

barred under Title VII and the PHRA. For PHRA claims to be timely, a plaintiff must file a

complaint with the PHRC within 180 days of the alleged adverse action. 43 Pa. Cons. Stat. §

959(h) (1997); Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997). For his Title VII

claims, the EEOC complaint must be filed within 300 days of the action. 42 U.S.C. § 2000e-

5(e)(1) (2009); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).

Plaintiff filed his first charge with the EEOC and PHRC on February 13, 2017. In it, he

discusses the failure to promote him on February 13, 2016; April 23, 2016; August 13, 2016;

December 31, 2016; and February 11, 2017. Under the 300-day time limit on Title VII claims,

only the April, August, December, and February 2017 allegations are timely; because of the 180-

day time limit on PHRA claims, only the December and February 2017 claims are timely.

Plaintiff filed his second charge with the EEOC and PHRC on August 22, 2018,

discussing the failure to promote him on February 10, 2018. While actionable under Title VII,

this event is time-barred under the PHRA. Finally, Plaintiff filed his third charge on October 22,

2018, discussing the February 24, 2018 promotions and promotion of Brown as an adverse

action. While actionable under Title VII, it is not timely under the PHRA.

Plaintiff argues that all of the above-mentioned barred claims are, in fact, not untimely

because the “continuing violation doctrine” allows his claims to be aggregated as a pattern of

action. However, the continuing violation doctrine only applies to hostile work environment

claims, which “involve[] repeated conduct” by “[t]heir very nature.” Morgan, 536 U.S. at 115.

This stands in contrast to “discrete discriminatory acts,” which, for statute of limitations

purposes, are viewed as separate incidents that need to each be alleged. Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (citing Morgan, 536 U.S. at 114). Failure to

promote is a discrete act. Id. In order for such an act to be actionable, a potential plaintiff must

have timely filed charges with the EEOC or PHRC regarding the specific act in question—filing

charges regarding related acts is not enough. See id. (citing Morgan, 536 U.S. at 113). The

continuing violation doctrine does not encompass these discrete discriminatory acts. See Rush v.

Scott Specialty Gases, Inc., 113 F.3d 476, 483 (3d Cir. 1997), abrogation on other grounds

recognized by Mandel, 706 F.3d at 166 (finding that the district court erred when determining

that a “failure to promote and train claim was not time barred because the continuing violation

theory applied to it”). Summary judgment shall be granted against Plaintiff to the extent he

seeks recovery based on those time-barred adverse actions.

Plaintiff faces an additional potential statute of limitations issue: none of his EEOC

filings mention the June 17, 2017 round of promotions, nor the alleged attempted drug test, the

surveillance, and the failure to properly investigate the internal EEO complaints. However, a

plaintiff may still sue for an act not included in the EEOC charge if the act is included in “the

scope of the EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination. . . .” Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). Put another way, “a

district court may assume jurisdiction over additional charges if they are reasonably within the

scope of the complainant’s original charges and if a reasonable investigation by the EEOC would

have encompassed the new claims.” Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208,

1212 (3d Cir. 1984). However, this does not permit Plaintiff to simply “bypass the

administrative process.” Webb v. City of Philadelphia, 562 F.3d 256, 262-63 (3d Cir. 2009)

(internal quotation omitted). The purpose of the EEOC filing requirement is to begin the process

of remedying discrimination: by giving notice to the employer and investigating for good cause.

Hicks, 572 F.2d at 963 (citing Ostapowicz, 541 F.2d at 398).1

The inquiry thus is whether the EEOC’s investigation reasonably would have included

examination of the unmentioned claims. Hicks, 572 F.2d at 966. The scope of a reasonable

investigation is judged only on the charge filed—not any information the plaintiff tells the

investigators after filing the charge. See id. at 966-67. The question is not what was

investigated, but what should have been investigated based on the charge; a plaintiff is not

permitted to “greatly expand an investigation simply by alleging new and different facts when he

was contacted by the Commission following his charge.” Id.

Thus, turning first to the unmentioned June 2017 round of promotions: it is not clear from

the record at what point the EEOC ended its investigation into Plaintiff’s first EEOC Complaint,

which was filed in March 2017. Taking all inferences in Plaintiff’s favor, the EEOC could have

been still investigating that Complaint, which alleged retaliatory failure to promote, when

Plaintiff was once again denied a promotion. One can fairly expect that, in the course of

investigating a failure to promote charge, the EEOC investigator would reasonably discover and

inquire into the outcomes of later rounds of promotions. Thus, this “new retaliation claim may

fairly be considered [an] explanation[] of the original charge. . . .” Howze, 750 F.2d at 1212

(internal citation and quotation omitted; alteration in original). In light of the unclear timeline of

the investigation in the record and the facial similarity of the June 17 non-promotion to the

1 This line of cases apply to the PHRA claims as well. See Mandel, 706 F.3d at 163.

previous non-promotions, summary judgment on this basis is not warranted.

However, the alleged attempted drug test, surveillance, and failure to properly investigate

the internal EEO complaints do not so fare. None were mentioned in the charges to the EEOC

and PHRC. Absent being told about them by Plaintiff, one would not reasonably expect an

investigator to uncover these types of allegations from a charge that specifically and only

discusses promotion. While retaliation for failure to promote due to filing EEO charges would

require evaluation of the EEO charges Plaintiff filed, that would be only for purposes of

confirming he engaged in a protected activity; there is no reason to believe the investigator

would have reason to assess the adequacy of the EEO investigation. The only gesture Plaintiff

makes towards inadequacy is mentioning in his charge that his fiancé and his fiancé’s cadet

examination partner were not interviewed by the EEO; this is not enough to require a reasonable

investigator to undertake a separate investigation into the overall quality of the EEO’s actions.

Regarding the drug test, approximately ten percent of PSP employees are randomly drug tested

every year. Even were the investigator to learn Plaintiff was drug tested, nothing from the

charge would yield the investigator to believe that needed to be looked into as an independent

retaliatory action. Finally, while the EEOC’s investigation may reasonably have entailed

interviewing Brown, there is no reason to believe an interview about the failure to promote and

wrongful promotion claims would yield the uncovering of surveillance allegations. Plaintiff’s

three EEOC charges only deal with failure to promote. As such, all of his claims based on non-

promotion allegations are time-barred, and summary judgment shall be granted against them.

C. Plaintiff’s Remaining Title VII and PHRA Claims

Thus, all that remains in this case are Plaintiff’s claims based on his passed promotions

on February 13, 2016; April 23, 2016; August 13, 2016; December 31, 2016; February 11, 2017;

June 17, 2017; and February 10, 2018; and the allegedly retaliatory promotion of Brown

occurring on the last date.2

Absent a noticeable difference in their language, retaliation claims under Title VII and

the PHRA are to be analyzed identically. See, e.g., Jones v. Se. Pa. Transp. Auth., 796 F.3d 323,

327 (3d Cir. 2015). In cases where the plaintiff only has indirect evidence of retaliation, as here,

the claims are adjudicated under the McDonnell Douglas framework, which proceeds in three

stages. See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (internal citations

and quotations omitted). First, Plaintiff must make out a prima facie case, which requires

showing:

(1) [engagement in a] protected employee activity; (2) adverse action by the

employer either after or contemporaneous with the employee’s protected activity;

and (3) a causal connection between the employee’s protected activity and the

employer’s adverse action.

Id. If Plaintiff makes these showings, the burden of production shifts to the Defendant to

“present a legitimate, non-retaliatory reason for having taken the adverse action.” Id. If such a

reason is advanced, the burden shifts back to the plaintiff to demonstrate that “the employer’s

proffered explanation was false, and that retaliation was the real reason for the adverse

employment action.” Id. “Although the burden of production of evidence shifts back and forth,”

Plaintiff always retains the ultimate burden of persuasion. Id. (emphasis added). For the

purposes of this motion, Defendants do not dispute that Plaintiff engaged in protected activities

and that failure to promote constitutes an adverse action.3

2 Under the PHRA, the only remaining claims are for failure to promote on December 31, 2016; February 11, 2017;

and June 17, 2017.

3 Defendants make a handful of other arguments that do not carry the day. First, Defendants argue they are

protected by sovereign immunity from the Title VII claims. But this is contrary to well-established Supreme Court

precedent that sovereign immunity does not bar recovery in Title VII suits. See, e.g., Fitzpatrick v. Bitzer, 427 U.S.

445, 457 (1976).

1. Causation

Defendants argue that Plaintiff fails to meet prong three of the McDonnell Douglas

framework, namely, that there is a “causal connection between the employee’s protected activity

and the employer’s adverse action.” Daniels, 776 F.3d at 193. Because causation “necessarily

involves an inquiry into the motives of an employer,” it is a “highly context-specific” question.

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997). As an initial matter,

Plaintiff must provide “some evidence that the individuals responsible for the adverse action

knew of the plaintiff’s protected conduct at the time they acted.” Daniels, 776 F.3d at 196; see

also Johnson v. Phila. Hous. Auth., 218 F. Supp.3d 424, 436 (E.D. Pa. 2016). Once that

threshold is met, the Third Circuit has held that a plaintiff can “demonstrate a link between

protected activity and an employer’s adverse action” by: (1) pointing to an “unusually

suggestive” temporal proximity between the protected activity and adverse action, or (2)

establishing that “the circumstances as a whole, including any intervening antagonism by the

employer, inconsistencies in the reasons the employer gives for its adverse action, and any other

evidence suggesting that the employer had a retaliatory animus when taking the adverse action.”

Daniels, 776 F.3d at 196 (internal citations and quotations omitted).

Defendants next argue that, because Plaintiff brought claims against the PSP, the Commonwealth is a redundant

party and should be dismissed from the suit. However, none of the cited cases support dismissing a state because a

state agency is a co-defendant. See Douglas v. Univ. of Pgh., 2016 WL 695661, at *1 (W.D. Pa. Jan. 19, 2016), rpt.

& rec. adopted, 2016 WL 693120 (W.D. Pa. Feb. 22, 2016) (dismissing a university’s board of trustees as redundant

because the university is also a party); Davis v. New Jersey Dep’t of Corr., 2011 WL 5526081, at *4 (D.N.J. Nov.

14, 2011) (dismissing a prison as a redundant party because the state department overseeing prisons was also a

party); Klatch–Maynard v. Sugarloaf Twp., 2008 WL 3992283, at *4 (M.D. Pa. Aug. 27, 2008) (dismissing a

township’s Board of Supervisors because the township itself is also a party). These cases deal with dismissing sub-

units of a state agency when the agency is also a party, not the Commonwealth.

Finally, Defendants argue that because Plaintiff did not separate the Commonwealth from the PSP in the caption of

his state court filing, he never intended to sue the Commonwealth. However, the caption in this Court identifies the

Commonwealth as a party; and the Commonwealth has not argued that it was never served or otherwise not properly

joined in this matter.

i. Knowledge

The first question thus is whether Plaintiff has introduced evidence to establish that

“individuals responsible for the adverse action” knew about his protective activity (i.e., his

participation in the EEO investigations and, later, the filing of his own EEO complaint) when

they declined to promote him. See Daniels, 776 F.3d at 196; Johnson, 218 F. Supp.3d at 436.

In the PSP, all final promotion decisions are made by Defendant Tyree Blocker, the

Commissioner. However, he makes the decisions “collectively,” with input from the Deputy

Commissioners: during the relevant time period Christie (Deputy Commissioner of

Administration and Professional Responsibility), Defendant William Horgas (then-Deputy

Commissioner of Operations4), and Defendant Stephen Bucar (Deputy Commissioner of Staff).

Taking all inferences in Plaintiff’s favor, the record suggests that the earliest time a

decision-maker knew about Plaintiff’s own EEO complaints is on February 6, 2017, when the

first EEO complaint was filed with Christie’s office; Christie sat down for an interview regarding

the complaint one month later. As Blocker worked in concert with his Deputy Commissioners,

including Christie, to make decisions, it can reasonably be inferred that Christie informed the

team in charge of promotions about this complaint when they met for the next round of

decisions.

As to Plaintiff’s allegations that he was also retaliated against for his participation as a

witness in two EEO investigations involving Plaintiff’s coworkers (regarding Dance’s racial

discrimination allegations and the anti-Semitic comment made by a Lieutenant), there is no

direct evidence that Blocker knew of this. Plaintiff alleges, however, that “[a]ll four [deputy]

commissioners knew of Plaintiff’s EEO filings and of the fact that he gave a statement that

4 In 2017, Horgas was replaced as Deputy Commissioner of Operations by Robert Evanchick, who is not a party to

this proceeding.

supported the complaints of race discrimination and retaliation made by then Lt. Dance.” But

Plaintiff cites to no evidence in the record supporting this allegation. Further—evidence that

does exist in the record points the other way. Horgas directly denies any knowledge. And

Christie stated that she did not learn about Plaintiff’s participation in Dance’s investigation until

Plaintiff filed his February 6, 2017 complaint. Thus, there is no competent evidence that Blocker

or any of the Deputy Commissioners knew about Plaintiff’s involvement in these earlier

complaints before that point. As evidence of knowledge is required, Plaintiff’s involvement with

the earlier EEO investigations cannot be considered an actionable protected activity for any

adverse actions predating the filing of his first complaint. See Daniels, 776 F.3d at 196;

Johnson, 218 F. Supp.3d at 436.

Defendants are thus entitled to summary judgment in their favor for the non-promotions

occurring before February 6, 2017.5

ii. Causal Connection

The only claims now remaining are the non-promotions on February 11, 2017; June 17,

2017; and February 10, 2018 (as well as the promotion of Brown on this date). Plaintiff must

show a causal connection between his protected activity and the actions taken against him.

Frequently, temporal proximity between attaining the knowledge and taking the adverse action

can serve to establish this causation. While “mere passage of time is not legally conclusive proof

against retaliation,” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996)

(internal quotations omitted), an unduly suggestive temporal proximity “is sufficient standing

alone to create an inference of causality and defeat summary judgment,” LeBoon v. Lancaster

Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). Unduly suggestive proximity simply

5 Specifically, claims based on his passed promotions occurring on December 6, 2014, June 6, 2015, January 16,

2016, April 23, 2016, August 13, 2016, and December 31, 2016 shall be dismissed.

requires a close-in-time connection; there is no hard line that conclusively determines whether or

not the timing creates a sufficient inference. Id. at 233.

Courts have previously found unduly suggestive temporal proximity when the gap

between the protected activity and adverse action was a matter of days. See Jalil v. Avdel Corp.,

873 F.2d 701, 708 (3d Cir. 1989) (two days); Shellenberger v. Summit Bancorp, Inc., 318 F.3d

183, 188 (3d Cir. 2003) (ten days). But when it is a matter of years, it is less likely to qualify.

See Woodson, 109 F.3d at 921 (two years); Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d

Cir.1997) (nineteen months). Ultimately, however, this is a fact-intensive determination—the

same length of time may be unduly suggestive in one circumstance, but not in another. Compare

Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005) (finding a three-month gap between the filing

of an administrative claim and the denial of a grievance suggestive where the grievance

investigator expressed irritation with the plaintiff’s complaints) with Williams v. Phila. Hous.

Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004), superseded by statute on other grounds, as

recognized in Robinson v. First State Cmty. Action Agency, 920 F.3d 182, 185 (3d Cir. 2019)

(finding two-month gap between the request for an accommodation and termination not unduly

suggestive when there was no other evidence of causation).

Plaintiff filed his first EEO complaint on February 6, 2017, and promotions were

announced just five days later, on February 11. Such close proximity between his action and his

being denied a promotion could create a reasonable inference to the factfinder that the complaint

may have been a factor. See Jalil, 873 F.2d at 708. On March 14, 2017, Plaintiff filed another

EEO complaint, and two days later, his first EEOC complaint. Another round of promotions

occurred roughly three months later, on June 17. Although the three-month gap is not as

inherently suggestive as the five-day one, see Leboon, 503 F.3d at 232, Plaintiff’s supervisor also

recommended him for a promotion this time, and he still did not receive one—which can support

an inference that the timing is suggestive. Finally, Plaintiff filed an EEO complaint on

November 7, 2017 and a union grievance on December 20, 2017. The final round of promotions

before Plaintiff’s retirement occurred less than two months later, on February 10, 2018. And

once again, Plaintiff was recommended for a promotion but denied one—while Brown, against

whom Plaintiff filed an EEO charge, was promoted. A reasonable factfinder could find this

timing suggestive. See Shellenberger, 318 F.3d at 188.

This conclusion is strengthened by “circumstantial evidence of a pattern of antagonism

following the protected conduct.” Kachmar, 109 F.3d at 177 (internal quotations and citations

omitted); see also Robinson v. Se. Pa. Transp. Auth., Red Arrow Div., 982 F.2d 892, 895 (3d Cir.

1993) (providing that a “constant barrage of written and verbal warnings . . . , inaccurate point

totalings, and disciplinary action, all of which occurred soon after plaintiff’s initial complaints

and continued until his discharge” can support causation). In evaluating a pattern of antagonism,

the Third Circuit has instructed courts to consider “circumstances as a whole” and “any other

evidence suggesting that the employer had a retaliatory animus when taking the adverse action.”

Daniels, 776 F.3d at 196. Under that rubric, it is appropriate to consider the full timeline of what

occurred between when Plaintiff first engaged in a protected activity and when he suffered an

adverse action.6

Thus, while the alleged attempts to drug test and surveil Plaintiff, and the alleged

insufficient investigation of his EEO complaints cannot themselves serve as adverse actions due

6 The record evinces some evidence of direct animus—or at least irritation—towards Plaintiff. Specifically, Plaintiff

points to emails between non-party EEO employees sent shortly after Plaintiff filed his EEOC charge, in which one

employee noted that Plaintiff still had an open EEO complaint when he filed his first EEOC charge. Another

employee replied, “It’s nice he waited to see the outcome of PSP investigation before he filed the EEOC claim (I am

saying that quite sarcastically).” While these employees did not have authority to handle promotions, and thus this

does not reflect animus on behalf of the Defendants directly, a reasonable factfinder could find this probative

evidence that the “circumstances as a whole” reflect antagonism towards Plaintiff. Daniels, 776 F.3d at 196.

to them being time-barred, a factfinder could find them probative evidence of antagonism and

animus. Numerous fact issues surround all of these allegations. For the drug test, there are

disputes regarding whether Plaintiff was actually scheduled to be drug tested and if Christie had

any knowledge of or involvement in it. Regarding the surveillance, the parties disagree over if

the surveillance occurred on Christie’s orders or if she found out about it after the fact; if there is

an applicable nepotism policy in place that made it appropriate for Brown to look into Plaintiff

working with his fiancé; and if Plaintiff or Brown first brought up Plaintiff’s EEO complaints

during their interactions. These incidents, which all occurred after Plaintiff filed his first EEO

complaint, viewed in the light most favorable to the Plaintiff, support a pattern of antagonism.

Plaintiff has therefore introduced sufficient evidence of causation and has made out a prima facie

case.

2. Fact Issues Surround the Pretext Determination

Once a plaintiff has made out a prima facie case of retaliation, the burden shifts to the

defendant to articulate “a legitimate, non-retaliatory reason for having taken the adverse action.”

Daniels, 776 F.3d at 193. Defendants offer one: Plaintiff was not promoted because he was not

the best candidate for promotion. First, they discount Plaintiff’s “outstanding” ratings on

performance reviews, noting these were “typical” for all employees. Further, they note that

Plaintiff had a disciplinary history; was not recommended by his supervisor for the February

2017 promotion; and was listed last on his supervisor’s list of recommendations and received

comparatively lukewarm recommendations for the June 2017 and February 2018 rounds of

promotion. It was thus for those reasons he was not promoted. See Jalil, 873 F.2d at 707

(explaining that Defendants can assert qualifications as a legitimate reason for denying

promotion). Defendants also argue that other employees who participated in EEO proceedings

were promoted, pointing to, for example, Lieutenant Dance.

The burden thus shifts back to Plaintiff, and merges with his ultimate burden of

persuasion, to “point to some evidence, direct or circumstantial, from which a factfinder could

reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that

an invidious discriminatory reason was more likely than not a motivating or determinative cause

of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (internal citations

omitted). The plaintiff’s burden to demonstrate pretext is to show that, based on the

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action,” a reasonable factfinder could rationally find the

explanation “unworthy of credence.” Id. at 765 (internal quotations omitted). Because “Title

VII retaliation claims must be proved according to traditional principles of but-for causation,”

requiring “proof that the unlawful retaliation would not have occurred in the absence of the

alleged wrongful action or actions of the employer, ” at the pretext stage, Plaintiff must show

that retaliatory motive was the but-for cause of retaliation. Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 360 (2013). Because pretext inherently requires weighing evidence,

which is a matter for the factfinder, a plaintiff seeking to overcome a motion for summary

judgment need only present enough evidence to create a genuine dispute as to if the defendant

employer’s legitimate reason was pretextual. See Fasold, 409 F.3d at 185.

There are significant fact issues surrounding pretext remaining in this case. Blocker and

the Deputy Commissions rely on numerous factors in making promotion decisions, including the

informal recommendations made by those below them; resumes; disciplinary history, “leadership

skill,” “practical experience,” and “interpersonal skill and ability.” Defendants do not deny that

there are subjective elements to the decisions, and it is unclear how they weighed each factor.

And more saliently, to determine whether Plaintiff was deemed less qualified under a multi-

factor promotion rubric that relies in part on subjective considerations would require deeming

Blocker’s and the Deputy Commissioners’ testimony about their subjective opinions credible—

and credibility determinations are a quintessential matter for the jury. See Anderson v. Liberty

Lobby, 477 U.S. 242, 255 (1986). Plus, Plaintiff points to other evidence that could be indicative

of pretext, namely the alleged promotion of a less qualified candidate who did not follow the

correct procedures to apply for her promotion over him.7 Summary judgment is thus not

appropriate on these claims.

For the foregoing reasons, the Defendants’ motion for summary judgment shall be

partially granted and partially denied. An appropriate order follows.

August 13, 2020 BY THE COURT:

/s/Wendy Beetlestone, J.

_______________________________

WENDY BEETLESTONE

7 Specifically, Plaintiff alleges that, during the February 11, 2017, round of promotions, Defendants promoted a

then-Sergeant to Lieutenant despite her not following the proper protocols. A Special Order was in place from July

1, 2015 to December 31, 2016 that required Sergeants seeking promotion to Lieutenant to, instead of taking the

Lieutenant Promotion Exam, submit a resumé to indicate interest. The individual who was promoted did not submit

a resumé. However, it is unclear if her promotion was decided upon in 2016 (before the Special Order expired), or

what the process for promotions to Lieutenant was after the Special Order expired. According to Plaintiff, the fact

that Defendants promoted someone who he asserts did not follow the correct procedure, while denying a promotion

to him, further shows pretext. Fuentes, 32 F.3d at 765 (noting that contradictions and incoherencies can establish

pretext). There is a genuine fact issue as to if any the other officer’s promotion did in fact violate policy and what

the process for promotions to Lieutenant looked like after the Special Order expired.

Finally, while the fact that other officers who filed and participated in EEO investigations were promoted could cast

significant doubt on Plaintiff’s claim, these are pieces of evidence to be weighed and questions to be considered by a

factfinder.