MCCROREY v. PHILADELPHIA POLICE DEPARTMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

JOHN MCCROREY, : CIVIL ACTION

Plaintiff, :

:

v. : No. 22-02227

:

:

CITY OF PHILADELPHIA, :

Defendant. :

MEMORANDUM

Kenney, J. July 26, 2023

Plaintiff John McCrorey (“Plaintiff”) brings this action against Defendant City of

Philadelphia (“Defendant”) alleging age discrimination and retaliation in violation of the Age

Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human Relations Act

(“PHRA”). Presently before this Court is Defendant’s Motion for Summary Judgment (ECF No.

25), which has been fully briefed (ECF Nos. 30, 34). For the reasons set forth below, the Court

will grant Defendant’s Motion for Summary Judgment (ECF No. 25). An appropriate Order will

follow.

I. FACTUAL BACKGROUND

Plaintiff John McCrorey was an officer of the Philadelphia Police Department from 1982

until his retirement in 2021. ECF No. 1 ¶¶ 21, 38, 53. In 2014, Plaintiff was assigned as a lieutenant

and supervisor in the Narcotics Field Unit (“NFU”). Id. ¶¶ 27, 29; ECF No. 31 ¶ 27. Plaintiff

remained in the NFU until his retirement in 2021. ECF No. 31 ¶¶ 101, 108, 116.

The NFU is a part of the Narcotics Division of the Narcotics Bureau, the branch of the

Philadelphia Police Department responsible for enforcement of drug laws. Id. ¶ 9–10; ECF No. 1

¶ 29. Specifically, the NFU is a “plainclothes, investigative unit of the Philadelphia Police

Department that investigates drug crime or sales occurring indoors at properties with the goal of

serving warrants for drugs and other contraband.” ECF No. 31 ¶ 12. The NFU is divided into six

squads covering six divisions across the City of Philadelphia: South, Southwest, Central, North,

Northeast, and East Divisions. Id. ¶ 13. Plaintiff was assigned to the NFU squad covering the East

Division (“East Squad”), which includes the neighborhood of Kensington, home to “the largest

open-air drug market on the East Coast of the United States.” Id. ¶¶ 14, 27. Prior to September

2020, NFU squads were generally comprised of one lieutenant, one sergeant, and multiple officers.

Id. ¶ 16. Each lieutenant was supposed to report to Captain David Merrick. Id.

In July 2020, Christopher Flacco became the Chief Inspector of the Narcotics Bureau. Id.

¶ 1. Flacco testified that prior to his appointment, Deputy Commissioner Singleton, who informed

Flacco of his appointment, told Flacco to “do what [he has] to do to fix [the Narcotics Bureau] and

get it working.” Id. ¶ 2. Since June 2019, the size of the Narcotics Bureau has declined due to

attrition and retirements. Id. ¶ 23. The manpower for the NFU also decreased during this time,

which, according to Flacco, forced the NFU to disband one of its two East Division squads. Id. ¶

24; ECF No. 27 ¶ 2. Flacco also testified that, upon his appointment, Philadelphia City Council

members voiced a desire for an improved narcotics enforcement strategy in Kensington, and that

Flacco was thus directed to submit “a detailed plan of narcotics enforcement for the East Division”

to the Philadelphia Police Commissioner’s Office. ECF No. 31 ¶ 75.

Before his assignment to the Narcotics Bureau, Flacco served as the Chief Inspector of the

Office of Professional Responsibility. Id. ¶ 3. Flacco testified that as a result of Internal Affairs

investigations conducted during his time in this role, he “was well aware of the lieutenants assigned

to the Narcotics Bureau, their strengths, their weaknesses, the complaints that were put against

them,” and that he “had a pretty . . . good picture of the entire Narcotics Bureau and how it

operated.” Id. ¶¶ 4–5. Flacco testified further that with this background, he was “not impressed

with the Narcotics Bureau as a whole,” including its personnel, with only a few exceptions. Id. ¶

6. According to Flacco, Plaintiff was not one of these exceptions, whereas Lieutenant Marques

Newsome was. ECF No. 25-4 at 19.

Inspector Jamill Taylor, the supervisor of the Narcotics Division, testified that, upon

arriving to the Bureau, Flacco evaluated the Bureau for a roughly two-month period to understand

its operations. ECF No. 31 ¶¶ 10, 76. Following this period, Flacco proposed a plan, the Narcotics

Enforcement Strategy (“NES”), on September 28, 2020. Id. ¶ 77. In the accompanying NES

Memo,

Additionally, an

“enhanced NFU squad . . . would be created within the Narcotics Bureau to address the NES in

[East Police Division (“EPD”)] with officers selected based on a number of criteria. ECF No. 27

¶ 4.

At the time of Flacco’s appointment to the NFU, Plaintiff was irrevocably scheduled to

retire pursuant to the Deferred Retirement Option Program (“DROP”) on October 23, 2021. ECF

No. 31 ¶ 28. The DROP program is designed to assist the City with succession planning by

“[allowing] the city to know exactly when individuals are retiring, and which positions will need

to be backfilled.” Id. ¶ 133. To this end, the DROP program enables employees with City-issued

pensions to commit to a retirement date four years in advance and collect both their salaries and

pension payments during their final years in service. Id. ¶ 134. To be eligible for the DROP

program, an officer must be eligible for retirement. Id. ¶ 135.

Plaintiff alleges that at a September 22, 2020 supervisor’s meeting, Flacco “commented on

how old the supervisors and personnel assigned to the unit [were]” and asked who was in the

DROP program. ECF No. 1 ¶¶ 32, 36. Plaintiff alleges that this was not the first time that Flacco

asked which members of the unit were DROP participants. ECF No. 34 ¶¶ 203–04. Plaintiff also

alleges that, in reference to NFU personnel working protests in the city, Flacco stated, “we are out

of the protest business” and “the police force [does not need] a bunch of fifty-year-old cops in

uniform acting as an [Emergency Response Group].” ECF No. 1 ¶¶ 33–34. When asked who was

in the DROP program, Plaintiff, along with Sergeant James Schuck and Lieutenant Robert

Muldoon, raised his hand. Id. ¶ 37. Plaintiff alleges that Flacco then introduced his plan for an

additional squad of three supervisors and twenty police officers to be formed in conjunction with

the NES plan as the enhanced NFU squad in the East Division. Id. ¶ 39. At the same meeting,

Flacco then selected Lieutenant Marques Newsome, Sergeant Vincent Nowakowski, and Sergeant

Alonzo Jett, all in their forties, for the three supervisor positions, with the two sergeants reporting

to Newsome. Id. ¶ 40; ECF No. 31 ¶¶ 103, 197.

As part of this reorganization, Flacco removed Plaintiff’s entire squad, all over 50 years

old, from the East Division, and reassigned Plaintiff, then 61 years old, to the Northwest Squad,

still part of the NFU. ECF No. 1 ¶¶ 20, 31, 44; ECF No. 31 ¶¶ 101, 105. While Plaintiff’s base

salary did not change with this reassignment, Plaintiff contends that the East Squad had

significantly more opportunities for overtime than other squads “one, on the basis of the scope and

area of the investigations, as well as the more people you’re supervising, the more investigations

are going to open, the more investigative overtime is going to be generated.” ECF No. 31 ¶¶ 104,

106. Plaintiff also contends that “assignment to the revised East squad carried a certain amount of

prestige and was perceived as favorable.” ECF No. 30-1 at 7. Additionally, Plaintiff believes that

the East Squad was “innovative, desirable, and esteemed,” and that “supervising and being part of

a new, advanced drug enforcement approach from the start up would give Plaintiff more visibility

and boost his career.” Id. at 5–6.

Plaintiff attributed his being moved off of the East Division to his age and DROP status,

while Flacco testified that the decision was driven by a recognition of Lieutenant Newsome’s

qualifications for the position, not a desire to move Plaintiff off of the East Division. ECF No. 31

¶¶ 89–90, 92–95, 107. Flacco also testified that Newsome was recommended for the position by

Inspector Taylor. Id. ¶ 89. Comparing career advancement and pay opportunities in the East Squad

to those of the Northwest Squad, Flacco testified that Plaintiff’s reassignment was “to a different

squad with the same exact responsibilities just in a different geographic part of the city,” a

characterization which Plaintiff disputes because of alleged differences in prestige and potential

for overtime. Id. ¶¶ 102, 104; ECF No. 30-1 at 5–7. Plaintiff did not ask Flacco or Taylor if he

could remain in the East Squad, nor did Plaintiff ask why he was reorganized to the Northwest

Squad. ECF No. 31 ¶ 98.

Captain Merrick testified that he disagreed with Flacco’s decision to appoint Newsome to

the East Squad because Newsome lacked established relationships in the region. ECF No. 34 ¶

181. Merrick also testified that Plaintiff previously ran the East Squad efficiently and was “overall

[Merrick’s] best lieutenant.” Id. ¶ 180. Merrick testified further that Flacco’s “reasoning [for the

reassignments] was basically he wanted to have particular lieutenants that were of a younger age

in particular groups, and he kind of made the lieutenants that were older aware that they really

weren't going to be included in his plans going forward.” ECF No. 30-3 at 61.

Following Plaintiff’s reassignment, Plaintiff went out on sick leave and began “running

time,” the practice of using accrued balances when nearing retirement, on September 23, 2020.

ECF No. 31 ¶¶ 108–09. Plaintiff never reported to assume command of Northwest Squad and

never returned to work. Id. ¶¶ 108, 116. Prior to going on leave, Plaintiff told Captain Merrick that

he could not “deal with this guy upstairs and with everything [Plaintiff] has going on.” Id. ¶ 115.

Plaintiff also told Merrick that he was “going to get a doctor’s note and [he] was going to start

running time, and [he was] just going to go ahead on and retire.” Id. At this time, Plaintiff’s brother-

in-law recently passed away and Plaintiff’s son was in and out of the hospital and severely ill. Id.

¶¶ 113–14. During his time on leave, Plaintiff presented sick notes to the Police Department on

October 5, 2020, December 2, 2020, January 15, 2021, February 15, 2021, and March 25, 2021.

Id. ¶ 118. The first sick note alluded to “medical reasons,” while the other four were attributed to

“reported anxiety.” ECF No. 25-4 at 176–80.

While on leave, on February 23, 2021, Plaintiff filed a Charge of Discrimination with the

Equal Employment Opportunity Commission (“EEOC”) against Defendant alleging age

discrimination. ECF No. 1 ¶ 50. Flacco testified that he learned of Plaintiff’s EEOC complaint

when he was interviewed by the Employee Response Unit, some period after the initial complaint

was filed. ECF No. 31 ¶ 132.

Also while on leave, on July 9, 2021, Plaintiff submitted a DROP extension election form.

Id. ¶ 148. “The Philadelphia Code includes provisions which allow, under extraordinary

circumstances, an extension in the DROP retirement program for up to one additional year.” ECF

No. 25-4 at 226. Lieutenant James Ferguson, who served as administrative supervisor for Deputy

Commissioner of Organizational Services Christine Coulter and was responsible for reviewing

DROP extension applications, testified that extensions were approved to get “boots on the ground”

due to staffing shortages. ECF No. 31 ¶¶ 137–38, 140. On July 2, 2021, the Mayor of Philadelphia

authorized a one-time DROP extension for officers who were scheduled to retire on a DROP date

falling within July 1, 2021 through June 30, 2022. Id. ¶ 142. The Mayor authorized this extension

in response to crime levels, political unrest, the COVID-19 pandemic, and staffing needs. ECF No.

25-4 at 226.

Lieutenant Ferguson testified that in order to be eligible for the DROP extension, an

employee had to be physically working or able to work. ECF No. 31 ¶ 147. The 2021-2022 DROP

Extension FAQ document states that “sworn officers of the Police Department at the rank of Police

Officer I or above who [were] required to separate from City employment between July 1, 2021

and June 30, 2022 as a result of their entry into the [DROP program] [were] eligible for this DROP

extension.” ECF No. 25-4 at 181. The FAQ also includes the question, “What happens if I am

injured or become ill and need more time off?” Id. at 183. The answer states that “in order to serve

the extraordinary circumstances that make this DROP extension necessary, it is essential that [the

applicant] be able and available for work.” Id. The answer states further, “If it is determined that

[the applicant] [is] unable to perform the essential functions of the job, with or without reasonable

accommodation, [the applicant’s] participation in the DROP extension will end and [the applicant]

will be separated from employment.” Id.

The DROP extension election form submitted by Plaintiff on July 9, 2021, explains that

the purpose of the DROP extension is to enhance the uniformed staffing strength due to existing

levels of crime and as a result of large-scale events that are expected. ECF No. 31 ¶ 148. The form

further states that an individual must be able and available for work during the duration of the

DROP extension period. Id. Although Plaintiff read the form before he signed it, and agreed to

what was in it, at the time he signed it, he did not have a return to work date from any of his

doctors. Id. ¶ 149.

Lieutenant Ferguson testified that the Deputy Commissioner had ultimate decision-making

authority on DROP extensions “if there were questions regarding [an applicant’s] status,” and that

decisions were made based on the totality of the circumstances. Id. ¶ 150. Ferguson was

responsible for compiling information on DROP extension applicants and sending that information

to the Deputy Commissioner. Id. ¶ 151. When Ferguson received the list of individuals who

applied for the DROP extension, he would: first, ask the Police Department Safety Office their

duty status and second, would personally run each name through the daily attendance reporting

(“DAR”) system. Id. ¶ 152. When Ferguson ran a DAR report for Plaintiff, the DAR system, which

retained attendance information back roughly one and a half years, reflected that Plaintiff had been

out on sick leave for the duration of the period run through the system. Id. ¶ 153.

On July 27, 2021, Plaintiff received a letter denying his DROP extension. Id. ¶ 156. The

letter states that “extending employees must be able and available to work for the duration for he

[sic] extended DROP period.” ECF No. 25-4 at 190. The letter states further that “[t]he individual

facts and circumstances of [Plaintiff’s] work status [had] been reviewed and it [had] been

determined that [he was] not currently able or available to work. As such, [he was] not eligible for

the DROP extension authorized by Mayor Kenney.” Id.

Despite being out on leave for months and receiving this letter, Plaintiff believes that he

was denied a DROP extension because he claims he received a phone call from an unidentified

individual saying that Flacco was going to try and deny his and Lieutenant Muldoon’s DROP

extensions. ECF No. 31 ¶ 157. The caller was neither Flacco nor Taylor. Id. Notably, Lieutenant

Muldoon’s DROP extension was approved and he remained working in the NFU. Id. ¶ 158. In

total, four individuals were denied DROP extensions during this period, two, including Plaintiff,

were out on extended sick leave, and the other two were “out injured on duty.” Id. ¶ 160. Ferguson

testified that no officers that were out on extended sick, vacation, or injury leave were granted a

DROP extension in fiscal year 2022. ECF No. 25-4 at 204. Ferguson also testified that he was not

aware of Plaintiff’s EEOC complaint at the time of the DROP extension denial. ECF No. 31 ¶ 162.

Flacco testified that he had no part in the DROP extension denial as “[i]t has nothing to do with

the bureau chiefs or the chain of command of the individual officer,” and that he was not even

aware of Plaintiff’s DROP extension request. Id. ¶ 163. None of the individuals involved with the

DROP extension decision reported to Flacco or fell within the groups that had access to EEOC

complaints. Id. ¶ 164.

Pursuant to his original DROP date, Plaintiff retired on October 23, 2021. Id. ¶ 165.

II. PROCEDURAL HISTORY

On June 6, 2022, Plaintiff filed this Complaint against the City of Philadelphia alleging age

discrimination and retaliation in violation of the Age Discrimination in Employment Act

(“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”). ECF No. 1. On March 29, 2023,

Defendant moved for summary judgment on the grounds that Plaintiff’s age discrimination and

retaliation claims both fail as a matter of law. ECF No. 25-2 at 2. Plaintiff filed a Response in

Opposition on April 19, 2023 (ECF No. 30), and Defendant filed a Reply on April 26, 2023 (ECF

No. 34). The Court held oral argument on May 16, 2023. ECF No. 36.

III. STANDARD OF REVIEW

A district court “shall grant summary judgment 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). Indeed, “[s]ummary judgment is appropriate when ‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.’” Wright v. Owens Corning, 679 F.3d 101, 105 (3d Cir. 2012) (quoting Orsatti

v.New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is “material” if it “might affect

the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). There is a genuine issue of material fact if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id.

The party moving for summary judgment has the initial burden “of informing the district

court of the basis for its motion, and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (internal quotation marks omitted). Once the moving party has met this

burden, the non-moving party must counter with “‘specific facts showing that there is a genuine

issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(citation omitted); see also Fed. R. Civ. P. 56(c).

The non-movant must show more than the “mere existence of a scintilla of evidence” for

elements on which the non-movant bears the burden of production. Anderson, 477 U.S. at 252.

The non-movant opposing a motion for summary judgment may not “rely merely upon bare

assertions, conclusory allegations or suspicions.” See Fireman’s Ins. Co. v. DuFresne, 676 F.2d

965, 969 (3d Cir. 1982). Additionally, the non-moving party “cannot rely on unsupported

allegations, but must go beyond pleadings and provide some evidence that would show that there

exists a genuine issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).

Moreover, arguments made in briefs “are not evidence and cannot by themselves create a factual

dispute sufficient to defeat a summary judgment motion.” Jersey Cent. Power & Light Co. v. Lacey

Twp., 772 F.2d 1103, 1109–10 (3d Cir. 1985).

When determining the existence of a genuine issue of material fact, a court must “examine

the evidence of record in the light most favorable to the party opposing summary judgment, and

resolve all reasonable inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d

Cir. 2007). The court need only decide whether “a fair-minded jury could return a verdict for the

plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. “Where the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine

issue for trial’” and the court should grant summary judgment in favor of the moving party.

Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation omitted).

IV. DISCUSSION

Defendant argues that they are entitled to summary judgment on Plaintiff’s age

discrimination claim because (1) Plaintiff cannot establish a prima facie case of age discrimination;

and (2) Defendant had legitimate, nondiscriminatory reasons for the East Squad supervisor

decision. Defendant also argues for summary judgment on Plaintiff’s retaliation claim because (1)

Plaintiff cannot prove a prima facie case of retaliation under the ADEA or the PHRA; (2) Plaintiff

cannot establish a pattern of antagonism because he never returned to work; and (3) Defendant had

legitimate, non-retaliatory reasons for deeming Plaintiff ineligible for a DROP extension.

In response, Plaintiff argues that (1) summary judgment on the age discrimination claim

should be denied because Defendant’s explanation for its actions were pretext for its discrimination

in violation of the ADEA and PHRA; and (2) summary judgment on the retaliation claim should

be denied because Plaintiff engaged in protected conduct under the ADEA and PHRA, and his

DROP extension denial in conjunction with discriminatory treatment establish causation.

As set forth below, the Court finds that (1) Plaintiff’s age discrimination claim fails because

Plaintiff fails to establish a genuine issue of material fact that his transfer constituted an adverse

employment action; and (2) Plaintiff’s retaliation claim fails because Plaintiff fails to establish a

genuine issue of material fact that his DROP extension denial constituted an adverse employment

action, and that his EEOC complaint caused the DROP extension denial. Accordingly, Defendant

is entitled to summary judgment.

A. Age Discrimination Claim

The ADEA makes it unlawful “for an employer . . . to fail or refuse to hire or to discharge

any individual or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment because of such individual's age.” 29 U.S.C. §

623(a)(1).

In their Motion for Summary Judgment, Defendant contends, inter alia, that there is no

direct evidence of age-based discrimination and, accordingly, Plaintiff’s claims should be

evaluated under the three-step burden shifting inquiry from McDonnell Douglas Corporation v.

Green, 411 U.S. 792, 802–03 (1973). ECF No. 25-2 at 8. As there is no evidence that would prove

age discrimination “without inference or presumption,” the Court agrees that the burden shifting

inquiry is the appropriate test. Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (citations

omitted).

“The McDonnell Douglas framework requires that the plaintiff first establish a prima

facie case of discrimination or retaliation. If the plaintiff successfully meets the requirements of

a prima facie case, the burden then shifts to the employer to articulate a legitimate, nonretaliatory

or nondiscriminatory reason for its actions. If the employer produces such a reason, the burden

then shifts back to the plaintiff to prove that the employer’s nonretaliatory or nondiscriminatory

explanation is merely a pretext for the discrimination or retaliation.” Tourtellotte v. Eli Lilly &

Co., 636 F. App’x 831, 842 (3d Cir. 2016) (citing McDonnell Douglas Corp., 411 U.S. at 802–

04).

“The existence of a prima facie case of employment discrimination is a question of law

that must be decided by the Court.” Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir.

2003). First, to establish a prima facie case of age discrimination under either the ADEA or PHRA,

Plaintiff must establish that he: (1) is forty years of age or older; (2) was subject to an adverse

employment action; (3) was qualified for the position in question; and (4) was replaced by another

employee who was sufficiently younger to support an inference of discrimination. Torre, 42 F.3d

at 830. “Where the plaintiff is not directly replaced, the fourth element is satisfied if the plaintiff

can provide facts which ‘if otherwise unexplained, are more likely than not based on the

consideration of impermissible factors.’” Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d

638, 644 (3d Cir. 2015) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)).

There is no dispute that Plaintiff satisfies the first and third prongs of a prima facie case of

age discrimination—Plaintiff is over forty years of age and was qualified to be a lieutenant in the

NFU’s East Squad. Torre, 42 F.3d at 830; ECF No. 25-2 at 9. However, as set forth below, Plaintiff

fails to establish a genuine issue of material fact as to the second prong—i.e., that he suffered an

adverse employment action. Torre, 42 F.3d at 830. Because Plaintiff was not subject to an adverse

employment action, the Court will not address the fourth element of the prima facie age

discrimination case, whether the circumstances of Plaintiff’s transfer support an inference of

discrimination. Id. Additionally, because Plaintiff fails to establish a prima facie case of age

discrimination, the Court will not address further burden shifting under the McDonnell Douglas

framework. Tourtellotte, 636 F. App’x at 842.

An “adverse employment action” has been defined as “a significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 761 (1998); see also Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp.

2d 502, 518 (E.D. Pa. 2012). Outside of employment actions with direct and immediate economic

consequences, employment actions that impede professional growth or significantly disrupt

working conditions may also be adverse. Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d

Cir. 1999); Walker v. Centocor Ortho Biotech, Inc., 558 Fed. App’x 216, 219 (3d Cir. 2014).

“Employment actions such as lateral transfers and changes of title or reporting relationships

have generally been held not to constitute adverse employment actions.” Walker, 558 Fed. App’x

at 219 (citing Burlington Indus., 524 U.S. at 761). For lateral transfers to qualify as adverse

employment actions, the transfer must generally lead to a change in “pay, benefits, duties,

prestige,” or rank. Id.; see also Rosati v. Colello, 94 F. Supp. 3d 704, 714 (E.D. Pa. 2015) (finding

no adverse employment action where officer was reassigned to different platoon in same district

with same schedule and accommodations). As noted in Burlington, inconveniences and “bruised

ego[s]” have been deemed insufficient to categorize transfers as adverse employment actions.

Burlington Indus., 524 U.S. at 761. An employee’s subjective preference for one position does not,

absent additional facts, make the employee’s assignment to another position an adverse

employment action. Swain v. City of Vineland, 457 Fed. App’x 107, 110–11 (3d Cir. 2012). Rather,

there must be some indication that the preferred position’s responsibilities are “objectively better

(e.g., more prestigious or less burdensome),” than those of the less preferred position. Id. (holding

that employee’s preference for K-9 unit, which he considered a “specialized endeavor,” absent

material difference in compensation, terms, conditions, privileges, prestige, or responsibilities, was

not sufficient to create adverse employment action when officer was not assigned to that unit).

Additionally, “a speculative increase in potential overtime does not qualify as a change in the terms

or conditions of employment, particularly where one's current position . . . offers its own

opportunities to earn overtime.” Id. at 111.

The Third Circuit has not provided specific guidance on analyzing differences in prestige,

however courts in other jurisdictions have looked for objective factors to substantiate the

notoriously subjective measure of “standing or estimation in the eyes of people.” Freeman v.

Potter, 200 Fed. App’x 439, 444–45 (6th Cir. 2006) (citation omitted). Factors examined have

included a role’s associated level of responsibility, unique characteristics, and training or

educational requirements. Id. (citing White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789,

803 (6th Cir. 2004)). Tangible effects on career advancement have also been analyzed. See Bryson

v. Chicago State University, 96 F.3d 912, 916 (7th Cir. 1996) (finding that title stripped from

professor “conferred prestige and was important to further professional advancement” as it

communicated professor’s qualifications to other academics). Additionally, courts have looked for

some showing that the employee’s target position was more prestigious than the employee’s less-

preferred position. See Freeman, 200 Fed. App’x at 445 (holding that conclusory evidence

regarding differences in relative prestige between positions was insufficient to support contention

of prestige-based adverse employment action). Prestige has also been distinguished from

desirability, which alone may or may not be sufficient to create an actionable claim of adverse

employment action. Compare id. (holding that although preferred position may have been more

desirable because located in university town with “ready access to collegiate athletic events, arts,

community lectures, etc., . . . simply because a position is desirable to someone does not make the

failure to get it actionable”), with Torre, 42 F.3d 825 at 831 n. 7 (finding plaintiff “created a

material fact issue concerning whether he was transferred . . . to a dead-end job that had effectively

been eliminated before he was transferred to it,” even though no difference in pay or benefits), and

Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 115 (3d Cir. 1996) (finding

officer’s claim that road patrol assignment was less desirable than detective bureau was sufficient

to overcome summary judgment even without cut in pay or rank).

In the present case, Plaintiff’s reassignment from the East Squad to the Northwest Squad

resulted in no direct, immediate economic harm as Plaintiff remained a lieutenant in the NFU and

retained the same base compensation. ECF No. 31 ¶¶ 102, 104. Plaintiff contends that his

responsibilities would have changed with his reassignment to the Northwest Squad, but provides

no evidence demonstrating how his duties would have actually differed. Id. ¶ 86. Rather, Plaintiff

bases his theory of adverse employment action on two separate contentions: (1) that the Northwest

Squad offered “significantly” less opportunities for earning overtime than the East Squad; and (2)

that the Northwest Squad was perceived as less prestigious than the East Squad and offered less

opportunities for visibility that could “boost [Plaintiff’s] career.” ECF No. 31 ¶ 106; ECF No. 30-

1 at 5–7. For the reasons set forth below, the Court finds both arguments are insufficient to

establish an adverse employment action.

For Plaintiff’s overtime contention, Plaintiff argues that the East Squad offered more

opportunities for overtime “on the basis of the scope and area of the investigations” and because

“the more people you’re supervising, the more investigations are going to open, the more

investigative overtime is going to be generated.” ECF No. 31 ¶¶ 104, 106. This contention fails to

rise beyond speculation. See Swain, 457 Fed. App’x at 111. As in Swain, Plaintiff asserts that there

would be a discrepancy in overtime between the two positions but provides only vague

assumptions to support his assertion. Id.; ECF No. 31 ¶¶ 104, 106. The Northwest Squad was not

without opportunities for overtime, and Plaintiff fails to present facts establishing that the overtime

opportunities in the Northwest Squad were inferior to those of the East Squad. ECF No. 31 ¶¶ 104,

106.

Plaintiff’s prestige contention is similarly unpersuasive. Although Flacco’s NES Memo

indicates that consideration for the revamped East Squad did require certain qualifications,

Plaintiff provided no evidence demonstrating that the position entailed unique responsibilities or

characteristics that could have a bearing on career advancement. ECF No. 27 ¶ 4; ECF No. 30-1

at 5–7. Plaintiff’s belief that the revamped East Squad was “innovative, desirable, and esteemed”

is remarkably similar to the officer’s belief in Swain that the K-9 unit was a “specialized endeavor.”

See Swain, 457 Fed. App’x at 110–11; ECF No. 30-1 at 5–7. In this case, as in Swain, the preferred

position confers no advantage in compensation, terms, conditions, privileges, or responsibilities.

See Swain, 457 Fed. App’x at 110–11; ECF No. 30-1 at 5–7. Additionally, prestige is generally

evaluated through the lens of career advancement, but Plaintiff was already enrolled in the DROP

program and scheduled to retire in 2021. See Bryson, 96 F.3d at 916; ECF No. 31 ¶ 28. Thus, even

if supervising the revamped East Squad would have signified to others in the Police Department

that Plaintiff was doing a certain kind of “innovative” police work, the assignment still would have

no bearing on Plaintiff’s career advancement since his retirement was imminent. See Bryson, 96

F.3d at 916; ECF No. 31 ¶ 28. Plaintiff also offers no characterization of the Northwest Squad’s

prestige relative to that of the East Squad. See Freeman, 200 Fed. App’x at 445; ECF No. 30-1 at

5–7.

Ultimately, Plaintiff’s theory of adverse employment action comes down not to prestige,

but desirability. See Freeman, 200 Fed. App’x at 445; but see Torre, 42 F.3d 825 at 831 n.7, and

Hampton, 98 F.3d at 115. Plaintiff, a veteran officer approaching retirement, wished to stay in the

East Division with “[his] guys.” ECF No. 31 ¶ 107. While Plaintiff’s distress at his unexpected

transfer so close to retirement is understandable, the Court finds no tangible impact of the transfer

beyond loss of desirability. See Freeman, 200 Fed. App’x at 445; ECF No. 31 ¶ 107.

Muldoon v. City of Philadelphia and Schuck v. City of Philadelphia, the sister cases to this

case initiated by Lieutenant Robert Muldoon and Sergeant James Schuck, respectively, denied

defense motions for summary judgment finding sufficient evidence of adverse employment action

by relying on the holdings in Torre and Hampton concerning desirability. Muldoon v. City of

Philadelphia, No. 22-1929, 2023 WL 2789692, at *1 (E.D. Pa. Apr. 5, 2023); Schuck v. City of

Philadelphia, No. 2:22-cv-02124, 2023 WL 3393416, at *2 n.3 (E.D. Pa. May 11, 2023). The

Court finds these cases distinguishable. In Torre, the plaintiff was terminated after being

transferred to what he viewed as a “dead-end job” that allowed for his termination to come at a

“more propitious—and seemingly innocent—moment.” Torre, 42 F.3d at 827–28. Here, Plaintiff

was not terminated and his transfer was from one of the NFU’s six geographic regions to another,

far from a “dead-end job” but rather integral to the operations of the NFU as a whole. See id. In

Hampton, the plaintiff was transferred from the detective bureau to a substantively different role

in road patrol which he viewed as less desirable. Hampton, 98 F.3d at 111, 116. Here, Plaintiff

was transferred to a role in the same division with the same general duties, greatly distinguishable

from a move from detective work to road patrol. See id. Additionally, if the plaintiff in Hampton

viewed the road patrol assignment as less desirable because it was less prestigious, then this would

be a prestige-based argument which Plaintiff fails to establish. See id. For these reasons, the Court

finds any loss in desirability as a result of Plaintiff’s transfer insufficient to classify the transfer as

an adverse employment action.

Accordingly, even taking the facts and inferences in the light most favorable to Plaintiff as

the non-moving party, Plaintiff has failed to meet his burden to show a prima facie case of age

discrimination.

B. Retaliation Claim

Plaintiff also brings claims of retaliation pursuant to the ADEA and PHRA. Once again,

since there is no direct evidence of retaliation, the Court uses the burden shifting framework in

McDonnell Douglas. “[A] plaintiff asserting a retaliation claim first must establish a prima facie

case by showing (1) [that he engaged in] 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.” Daniels

v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015) (internal citations omitted). There

is no dispute that Plaintiff’s EEOC Complaint, filed February 23, 2021, constituted protected

employee activity. However, for the reasons set forth below, Plaintiff fails to establish a genuine

issue of material fact either that (1) he was subject to an adverse employment action

contemporaneous with or following his EEOC complaint; or (2) his EEOC complaint caused the

adverse employment action, if found. Again, because Plaintiff fails to establish a prima facie case

of retaliation, the Court will not address further burden shifting under the McDonnell Douglas

framework. Tourtellotte, 636 F. App’x at 842.

1. Adverse Employment Action

To determine whether an employee was subject to an adverse employment action in

response to or during the protected activity, the Court “examine[s] the challenged conduct from

the perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.” Daniels, 776 F.3d at 195 (internal citations and quotation marks omitted).

“[P]laintiff must show that a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Id. The spectrum of employer actions that

may be categorized as adverse is also broader in retaliation claims than discrimination claims. See

Komis v. Sec'y of U.S. Dep't of Lab., 918 F.3d 289, 293 (3d Cir. 2019) (stating that “[u]nlike the

antidiscrimination provision, the antiretaliation provision is not limited to employer action that

affects the terms and conditions of a claimant’s employment”).

Here, while not dispositive, the denial of Plaintiff’s DROP extension application did not

seriously alter Plaintiff’s compensation, terms, conditions, or privileges of employment. Id. If

Plaintiff sincerely believed that he was entitled to the DROP extension as a privilege of his

employment, that belief was not reasonable. Daniels, 776 F.3d at 195. Plaintiff harbored no

illusions as to the function of the DROP program, testifying, “[Y]ou sign a contract with the City

saying that on that date you have to retire.” ECF No. 31 ¶ 38. Far from guaranteed, DROP

extensions are allowed under the Philadelphia Code only for “extraordinary circumstances.” ECF

No. 25-4 at 226. The Mayor declared such an extraordinary circumstance authorizing DROP

extensions on July 2, 2021, “as a result of the level of shootings, political unrest, and economic

circumstances faced by the City as it [recovered] from the COVID-19 pandemic, and existing and

projected staffing levels within the key departments in the City, that threatens public health, safety,

and welfare.” Id. Even when DROP extensions are formally authorized, individual approval is

clearly limited based on ability to work. Id. at 183, 186. The DROP Extension FAQ makes clear

that “it is essential that [the applicant] be able and available for work.” Id. at 183. Plaintiff’s DROP

Extension Election Form states, “I affirm that I am currently able to perform the essential functions

of my position . . . I also understand that . . . I must be able and available for work for the duration

of the extended DROP period.” Id. at 186.

Plaintiff contends that the Election Form only conveys that applicants must be available to

work during the extended period, not also during the period leading up to the original DROP date.

ECF No. 30-1 at 16. This is a mischaracterization of the document. Id. Plaintiff affirmed that he

was currently able to work, but never returned to work or provided a doctor’s note indicating that

he could return. ECF No. 31 ¶¶ 148–49. In a police force combating attrition and personnel

shortages, the DROP program, and by extension, the DROP extension program, exist to facilitate

personnel planning and keep “boots on the ground.” Id. ¶¶ 23, 133, 140. Granting a DROP

extension to an officer who is out sick and running time with no timetable for return would

contravene this purpose. Id. Accordingly, the only four DROP extensions denied during this period

were for individuals that were out on extended leave. Id. ¶ 160.

Taking all facts in the light most favorable to Plaintiff, Plaintiff still fails to establish that

a reasonable employee would have found the DROP extension denial materially adverse. Daniels,

776 F.3d at 195. Plaintiff was not entitled to a DROP extension merely on account of his

enrollment in the DROP program, and indeed he was not qualified for the extension given his

prolonged absence from work. Id. A reasonable employee would not be dissuaded from engaging

in protected conduct for fear of being denied something they had no chance of being granted in

the first place, and as such the Court finds no evidence that Plaintiff was subject to an adverse

employment action in response to his EEOC complaint. Id.

2. Causal Connection Between Protected Act and Adverse Action

Even if the DROP extension denial constituted an adverse employment action, Plaintiff

fails to raise a genuine issue of material fact that his EEOC complaint caused the denial. To prove

causation in this context, a plaintiff “must establish that his or her protected activity was a but-for

cause of the alleged adverse action by the employer.” Burton v. Pennsylvania State Police, 990 F.

Supp. 2d 478, 509 (M.D. Pa. 2014) (citing University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.

338 (2013)), aff’d, 612 F. App’x 124 (3d Cir. 2015). Courts “consider ‘a broad array of evidence’

in determining whether a sufficient causal link exists [for a plaintiff] to survive a motion for

summary judgment.” Daniels, 776 F.3d at 196 (internal citations omitted). “To demonstrate a link

between protected activity and an employer's adverse action, a plaintiff may rely on the temporal

proximity between the two if ‘unusually suggestive.’” Id. (internal citations omitted). “In the

absence of such a close temporal proximity, [courts] consider 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.” Id. (internal citations omitted). Intervening antagonism

by an employer may create an inference of causation where the plaintiff offers “circumstantial

evidence of a ‘pattern of antagonism’ following the protected conduct.” Bailey v. Commerce Nat.

Ins. Servs., Inc., 267 F. App’x 167, 170 (3d Cir. 2008) (citing Kachmar v. SunGard Data Sys.,

Inc., 109 F.3d 173, 177 (3d Cir. 1997)). “The plaintiff, however, cannot establish that there was a

causal connection without 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 196–97

(internal citations omitted).

Here, roughly five months1 passed between Plaintiff’s EEOC complaint, filed February 23,

2021, and Plaintiff’s receipt of the DROP extension denial letter, dated July 27, 2021. ECF No. 1

¶ 50; ECF No. 31 ¶ 156. In Williams v. Philadelphia Housing Authority Police Dept., the Third

Circuit found that an elapsed period of two months between a protected activity and adverse

employment action was “not so close as to be unduly suggestive.” 380 F.3d 751, 760 (3d Cir.

2004) (citations omitted). Similarly, in LeBoon v. Lancaster Jewish Community Center Ass’n, the

Third Circuit found that “[a]lthough there is no bright line rule as to what constitutes unduly

suggestive temporal proximity, a gap of three months between the protected activity and the

adverse action, without more, cannot create an inference of causation and defeat summary

judgment.” 503 F.3d 217, 233 (3d Cir. 2007) (citations omitted). In Bailey, the Third Circuit

similarly found that an elapsed period of four months was not unduly suggestive. 267 F. App’x at

170 (citations omitted). With these decisions in mind, the Court finds that the elapsed five month

period is not unduly suggestive of retaliatory motive.

Plaintiff also offers insufficient evidence to establish that he experienced a pattern of

antagonism. In Robinson v. Southeastern Pennsylvania Transp. Authority, Red Arrow Div., the

Third Circuit found a pattern of antagonism where the employer “subjected [plaintiff] to a constant

barrage of written and verbal warnings . . ., inaccurate [disciplinary] point totalings, and

disciplinary action, all of which occurred soon after plaintiff’s initial [protected conduct] and

continued until his discharge” 982 F.2d 892, 895–96 (3d Cir. 1993) (internal quotation marks

1 Defendant’s Motion for Summary Judgment cited ten months between the protected

activity and DROP extension denial. ECF No. 25-2 at 20. Rather than use Plaintiff’s EEOC

complaint as the protected conduct, this calculation appears to use the date Plaintiff went on leave,

September 23, 2020. ECF No. 31 ¶ 108–09, 156. As Plaintiff only alleges retaliation in response

to the EEOC complaint, the Court will use the date the EEOC complaint was filed, February 23,

2021.

omitted). Given this pattern, “the court could reasonably find that the initial series of events

[surrounding the protected conduct] thus caused [plaintiff’s] and [defendant’s] relationship to

deteriorate.” Id. Here, there is no such pattern as Plaintiff was permitted to continue running time

up to his DROP date without ever being subjected to any kind of disciplinary action or other form

of antagonism. ECF No. 31 ¶¶ 108–109, 116. A single call from an unidentified individual stating

that Flacco would try to deny Plaintiff’s and Muldoon’s DROP extensions is at most an isolated

occurrence that fails to establish a pattern indicative of retaliatory cause. Id. ¶¶ 157–58.

Perhaps most importantly, Plaintiff fails to establish that any of the decisionmakers behind

the DROP extension denial were aware of Plaintiff’s EEOC complaint at the time of the decision,

a showing that Daniels instructs is essential to establishing causation. Daniels, 776 F.3d at 196–

97. None of the individuals involved with the DROP extension decision reported to Flacco or fell

within the groups that had access to EEOC complaints. ECF No. 31 ¶ 164. Even if Flacco was

aware of Plaintiff’s EEOC complaint prior to the DROP extension decision, Lieutenant Ferguson,

who was responsible for reviewing the extension applications, testified that he was not aware of

the complaint, and nothing in the record indicates otherwise. Id. ¶ 162. Plaintiff also provides no

evidence that Christine Coulter, Deputy Commissioner of Organizational Services, was aware of

the complaint. Id. ¶ 137. Additionally, the phone call from an unidentified individual fails to rise

beyond hearsay. See Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009) (noting that

“hearsay statements that would be inadmissible at trial may not be considered for purposes of

summary judgment”) (internal citation omitted).

For these reasons, even taking the facts and inferences in the light most favorable to

Plaintiff as the non-moving party, Plaintiff has failed to establish that his EEOC complaint was the

“but-for cause” of the DROP extension denial. Burton, 990 F. Supp. 2d at 509. Far from

establishing the protected conduct as a but-for cause of the denial, Plaintiff has not even established

that the protected conduct was a contributing cause. Id. Plaintiff was out on leave with no timetable

for return and denied the ability to extend his participation in a program designed to facilitate

personnel planning and keep “boots on the ground.” ECF No. 31 ¶¶ 23, 133, 140. Four officers

were denied DROP extensions, and all four were out on extended leave. Id. ¶ 160. Conversely,

Lieutenant Muldoon, who also filed an EEOC complaint but, unlike Plaintiff, remained at work,

was granted a DROP extension. Id. ¶ 158; Muldoon, 2023 WL 2789692, at *1. As such, Plaintiff’s

prolonged absence from work is the only apparent cause of his DROP extension denial, and

Plaintiff has not provided sufficient evidence to establish even a tenuous causal link tracking the

decision back to his EEOC complaint.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 25) is

granted, and judgment is entered in favor of Defendant. An appropriate Order will follow.

BY THE COURT:

/s/ Chad F. Kenney

CHAD F. KENNEY, JUDGE