# CHAMBERS v. COMMONWEALTH OF PENNSYLVANIA

> District Court, E.D. Pennsylvania · August 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10399494

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10399494

## How later opinions describe it (automated extraction)

- explaining that Defendants can assert qualifications as a legitimate reason for denying promotion
- 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
- finding two-month gap between the request for an accommodation and termination not unduly suggestive when there was no other evidence of causation
- noting that contradictions and incoherencies can establish pretext

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399494. Public record. Not legal advice.