DANCE v. COMMONWEALTH OF PENNSYLVANIA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GARY L. DANCE, JR., :

Plaintiff : CIVIL ACTION NO. 3:18-1593

v. : (JUDGE MANNION)

COMMONWEALTH OF :

PENNSYLVANIA,

PENNSYLVANIA STATE :

POLICE, GREGORY BACHER,

GEORGE BIVENS, TYREE :

BLOCKER, MARCUS BROWN,

DAVID CAIN, LISA CHRISTIE :

EDWARD HOKE, WENDELL

MORRIS, AND MICHAEL :

WITMER,

:

Defendants

:

MEMORANDUM

Presently before the court is Defendants’ motion for summary

judgment, (Doc. 135), and Plaintiff’s motion to strike. (Doc. 142). Defendants

have moved for summary judgment on all claims in Plaintiff’s second

amended complaint, (Doc. 79). Plaintiff has moved to strike Defendants’

motion for summary judgment and its accompanying statement of material

facts. Upon review, Plaintiff’s motion to strike will be DENIED, and

Defendants’ motion for summary judgment will be GRANTED IN PART and

DENIED IN PART.

I. BACKGROUND1

Plaintiff Gary L. Dance, who is an African-American man, worked for

the Pennsylvania State Police (PSP). (Doc. 156 ¶¶22–23). In 1996, he was

assigned to the King of Prussia station, and in 2012, reassigned to Troop

T – Pocono as Eastern Patrol Section Commander. (Id. ¶24, 26). As a state

trooper, Dance was promoted to Corporal in 1998, Sergeant in 2002,

Lieutenant in 2005, Captain in 2018, and Major in 2020. (Id. ¶25; Doc. 139

¶¶41–42, 46).

Plaintiff alleges that on multiple occasions he was passed over for

promotion in favor of other less experienced, and Caucasian, officers. (Doc.

79 ¶¶54–56, 63, 68, 72, 80, 84, 89, 91–93, 96, 106). He also alleges that he

was excluded from various decisions and communications and that certain

1 Defendants have filed an answer to Plaintiff’s second amended

complaint. (Doc. 156). In addition, Defendants filed a statement of material

facts, (Doc. 136), Plaintiff answered that statement, (Doc. 139), and filed a

counter-statement of material facts (Doc. 138).

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opportunities were withheld from him. (Id. ¶¶37, 62) At various points, he

informed Defendant Hoke of his concerns regarding discrimination and

retaliation. (Id. ¶¶58, 65; Doc. 156 ¶¶58, 64–65). During his employment

Plaintiff made internal complaints of discrimination and retaliation with the

PSP Equal Employment Office. (Doc. 156 ¶79).

Plaintiff filed a Charge of Discrimination with the United States Equal

Employment Opportunity Commission and the Pennsylvania Human

Relations Commission in July 2016. (Doc. 139 ¶1). Regarding this Charge,

the EEOC determined that there was reasonable cause to believe that

Defendant PSP had violated Title VII of the Civil Rights Act of 1964. (Doc.

138-62). Conciliation was unsuccessful, and Plaintiff received notice of his

right to sue. (Doc. 138-63). Plaintiff filed another Charge of Discrimination in

November 2017. (Doc. 139 ¶7; Doc. 138-72). He filed additional charges in

February 2019, (Doc. 138-72), and May 2019 (Doc. 138-74).

This case was originally filed in December 2017. (Doc. 1). Plaintiff

amended his complaint first in May 2019, (Doc. 59), and again in December

2019. (Doc. 79).

The Second Amended Complaint names as defendants the

Commonwealth of Pennsylvania, the Pennsylvania State Police, and a

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number of PSP employees. (Doc. 79). Plaintiff brings claims under Title VII

of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, 42

U.S.C. §1981 pursuant to 42 U.S.C. §1983, and the First and Fourteenth

Amendments pursuant §1983.

The court previously dismissed all of Plaintiff’s Title VII claims that

occurred before September 15, 2015, and all of Plaintiff’s claims under

§1983 that occurred before December 29, 2015. (Doc. 37).

II. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable

jury could find for the non-moving party, and is material if it will affect the

outcome of the trial under governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen,

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903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage,

“the judge’s function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d

241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make

credibility determinations). Rather, the court must consider all evidence and

inferences drawn therefrom in the light most favorable to the non-moving

party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323–24. The moving

party can discharge that burden by showing that “on all the essential

elements of its case on which it bears the burden of proof at trial, no

reasonable jury could find for the non-moving party.” In re Bressman, 327

F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving

party meets this initial burden, the non-moving party “must do more than

simply show that there is some metaphysical doubt as to material facts,” but

must show sufficient evidence to support a jury verdict in its favor. Boyle v.

County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However,

if the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to [the non-movant’s] case, and on which

[the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the

entry of summary judgment because such a failure “necessarily renders all

other facts immaterial.” Celotex Corp., 477 U.S. at 322–23; Jakimas v.

Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

III. DISCUSSION – MOTION TO STRIKE

Plaintiff has filed a “Motion to Strike Defendants’ Motion for Summary

Judgment and/or Their Statement of Material Facts,” (Doc. 142), based on

alleged violations of Federal Rule of Civil Procedure 56 and Local Rule 56.1.

(Id. at 2).

Plaintiff first faults Defendants for not appending exhibits to their

motion. Yet Rule 56 does not require “that the moving party supplement its

motion with affidavits or other similar materials negating the opponent’s

claim.” Celotex, 477 U.S. at 323. Instead, “the burden on the moving party

may be discharged by ‘showing’—that is, pointing out to the district court—

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that there is an absence of evidence to support the nonmoving party’s case.”

Id. at 325.

As alleged violations of Local Rule 56.1, Plaintiff cites various

“sweeping legal conclusions” contained in Defendants’ statement of facts

“without citations to the record.” (Doc. 143 at 7). Some of the statements to

which Plaintiff refers are negations: assertions that Plaintiff has not produced

evidence showing a certain fact. (Doc. 136 ¶¶10.a–c, 13a–3, 21). As such,

they cannot themselves be supported by a record citation. Others are merely

subparts of statements which do include a reference to the record. (Id.

¶¶39a–b, 40a–c). Still others are pure legal conclusions, not statements of

fact. (Id. ¶¶47–57). Of course, such statements are of no use to the court or

to Defendants—but that does not necessarily render the entire statement of

facts unacceptable. Finally, Plaintiff cites one factual assertion which lacks a

reference to the record. (Id. ¶46). That statement, that Plaintiff was offered

and accepted a promotion to Major in March 2020, is undisputed. (Doc. 139

¶46). How the absence of citation for one undisputed fact, undoubtedly within

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Plaintiff’s personal knowledge, so frustrates the purpose of Local Rule 56.1

as to warrant striking entire filings is unclear.

Local Rule 56.1 requires that “[s]tatements of material facts … shall

include references to the parts of the record that support the statement.” With

one exception, Defendants have provided a supporting reference to each

statement of fact. Assuredly, Defendants’ statement, as well as Plaintiff’s

counter-statement, could be more concise. And attempts in either to pass off

legal conclusions, speculations, or opinions as facts are rejected.

Nonetheless, there is no indication that Plaintiff has been prejudiced

by any technical violation of Local Rule 56.1. Defendants’ fail to attach

certain cited evidence at their own peril; in any event, Plaintiff’s answer to

Defendants’ statement indicates that Plaintiff could access the record. As to

the extraneous legal conclusions contained in Defendants’ statement of

facts, the court pays no mind to those whatsoever. And Plaintiff cannot claim

that he was somehow disadvantaged by the absence of a record citation for

the fact that Plaintiff himself was promoted to Major, a fact which he admits.

A district court’s decision whether to employ sanctions for violations of

local rules is “fully within the discretion of that Court.” Weitzner v. Sanofi

Pasteur Inc., 909 F.3d 604, 613–14 (3d Cir. 2018). Here, the court concludes

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that sanctions are unnecessary. To be sure, the court continues to require

strict compliance with the Local Rules. At the same time, it urges counsel to

train their efforts on resolution of the case. See Model Rules of Pro. Conduct.

r. 3.2 (Am. Bar. Ass’n).

IV. DISCUSSION – MOTION FOR SUMMARY JUDGMENT

A. Exhaustion of Administrative Remedies

Count I of the Complaint brings various claims under Title VII of the

Civil Rights Act of 1964. (Doc. 79 ¶¶110–14). Before bringing a Title VII claim

in court, a plaintiff must file a complaint with the EEOC and thereafter receive

a right-to-sue letter. Burgh v. Borough Council of Montrose, 251 F.3d 465,

470 (3d Cir. 2001); 42 U.S.C. §2000e-5(f)(1). If the complainant decides to

bring an action in court, it must be filed within 90 days of receipt of the right-

to-sue letter. §2000e-5(f)(1); Burgh, 251 F.3d 465, 470 (3d Cir. 2001).

Defendants argue that they are entitled to summary judgment on all

failure-to-promote to Captain claims because Plaintiff failed to exhaust such

claims. (Doc. 137 at 13).

Plaintiff’s first EEOC charge, Charge No. 530-2016-03171, was filed

on July 16, 2016. (Doc. 138-40). Plaintiff there alleged that he was passed

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over for promotion to Acting Troop Commander in favor of a white lieutenant.

(Id.). He also made allegations concerning lowered performance reviews and

denials of discretionary overtime requests following Plaintiff’s testimony

related to another officer’s discrimination complaints. (Id.). Finally, Plaintiff

generally alleged that “[s]ince October 19, 2014” he had “been denied a

promotion, denied temporary assignments, and purposely excluded from all

decisions that are warranted for my position as a Lieutenant.” (Id.). On

October 4, 2017, the EEOC issued a right-to-sue letter regarding this charge.

(Doc. 138-64). Plaintiff filed his original complaint within 90 days, on

December 29, 2017. (Doc. 1).

“The ‘relevant test’” for determining whether a later claim needs to be

exhausted despite the filing of a previous charge is a two-pronged inquiry

into whether ‘the acts alleged in the subsequent suit are fairly within the

scope of [1] the prior EEOC complaint, or [2] the investigation arising

therefrom.” Simko v. U.S. Steel Corp., 992 F.3d 198, 207 (3d Cir. 2021)

(quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984) (“Where

discriminatory actions continue after the filing of an EEOC complaint … the

purposes of the statutory scheme are not furthered by requiring the victim to

file additional EEOC complaints …. This court has recognized this fact in

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permitting suits based on new acts that occur during the pendency of the

case which are fairly within the scope of an EEOC complaint or the

investigation growing out of that complaint.”)).

The court concludes that Plaintiff’s failure-to-promote to Captain claims

were fairly within the scope of Charge No. 530-2016-03171, which alleged

that Plaintiff, a Lieutenant, had been denied promotions. The scope of that

allegation fairly includes promotions to Captain. Therefore, Plaintiff did not

fail to exhaust administrative remedies regarding his failure-to-promote to

Captain claims.

Defendants also argue that Plaintiff failed to exhaust his second EEOC

charge, Charge No. 530-2018-00435. (Doc. 137 at 11). Plaintiff filed Charge

No. 530-2018-00435 with the EEOC on November 8, 2017, alleging that he

was passed over for promotion to Captain on four occasions in favor of less

senior, Caucasian individuals. (Doc. 138-72). The parties agree that Plaintiff

received right-to-sue notice on July 23, 2018. (Doc. 137 at 12; Doc. 140 at

10). Defendants argue that because no new action or amendment was filed

before October 21, 2018, 90 days after the right-to-sue notice, Plaintiff failed

to exhaust the claims contained in this charge. (Doc. 137 at 13).

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This argument must be rejected for the same reason as Defendants’

more general argument regarding failure-to-promote to Captain claims.

Charge No. 530-2018-00435 alleges later failure-to-promote to Captain

claims, and is thus also fairly within the scope of Charge No. 530-2016-

03171, which was properly exhausted prior to the filing of this lawsuit.

Because its allegations are fairly within the scope of a properly exhausted

charge, Charge No. 530-2018-00435 did not need to be separately

exhausted. And the promotions which this charge alleges to have occurred

between August 13, 2016 and May 6, 2017, (Doc. 138-72), were included in

Plaintiff’s original complaint, (Doc. 1 ¶¶231, 244–45, 251, 253–54, 260, 275–

78), which was timely filed within 90 days of Plaintiff receiving his right-to-

sue letter regarding Charge No. 530-2016-03171. For these reasons, the

court concludes that Plaintiff’s Title VII claims are not precluded by such

failures to exhaust.

B. Counts I & VI Title VII Discrimination

Counts I and VI bring claims of racial discrimination against the

Commonwealth and the Pennsylvania State Police under Title VII. A Title VII

discrimination claim based on indirect evidence of discrimination is analyzed

according to the McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802–03

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(1973) framework. Burton v. Teleflex Inc., 707 F.3d 417, 426 (2013). Under

this analysis, the plaintiff bears the initial “burden of making out a prima facie

case of discrimination. Id. “[T]he burden of production then shifts to the

defendant to offer a legitimate non-discriminatory justification for the adverse

employment action.” Id. Finally, the burden of production shifts “back to the

plaintiff to provide evidence from which a factfinder could reasonably infer

that the employer’s proffered justification is merely a pretext for

discrimination.” Id.

A prima facie case of discrimination requires a showing that the plaintiff

(1) “is a member of a protected class”; (2) “was qualified for the position [he]

sought to retain” (3) “suffered an adverse employment action”; and that (4)

“the action occurred under circumstances that could give rise to an inference

of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.

2008). A plaintiff may show circumstances giving rise to an inference of

discrimination by identifying “similarly situated” individuals outside the

protected class who were treated more favorably than the plaintiff. Mandel v.

M & Q Packaging Corp., 706 F.3d 157 (3d Cir. 2013).

Defendants argue that Plaintiff cannot make out a prima facie case of

discrimination because he cannot show that he was treated less favorably

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than similarly situated employees or that he suffered an adverse employment

action. (Doc. 137 at 20–21).

“The burden of establishing a prima facie case of disparate treatment

is not onerous.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253

(1981) (“The prima facie case serves an important function in the litigation: it

eliminates the most common nondiscriminatory reasons for the plaintiff’s

rejection.”).

i. Adverse Employment Action

In the Title VII context, an “adverse employment action” is “an action

by an employer that is serious and tangible enough to alter an employee’s

compensation, terms, conditions, or privileges.” Storey v. Burns Int’l Sec.

Servs., 390 F.3d 760, 764 (3d Cir. 2004). Defendant’s argument on this

element is that Plaintiff cannot show such an action. (Doc. 137 at 21).

Failure to promote is an adverse employment action. Barnees v.

Nationwide Mut. Ins. Co., 598 Fed. Appx. 86, 90 (3d Cir. 2015); Walker v.

Centocor Ortho Biotech, Inc., 558 Fed. Appx. 216, 219 (3d Cir. 2014); Friel

v. Mnuchin, 474 F. Supp. 3d 673, 686 (“What qualifies as an adverse

employment action …. includes … failing to promote.” (E.D. Pa. 2020)

(quoting Remp. V. Alcon Lab’ys, Inc., 701 Fed. Appx. 103, 106 (3d Cir.

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2017)); Watson v. Pennsylvania, 2009 WL 151595, at *3 (M.D. Pa. 2009)

(citing Sherrod v. Phila. Gas Works, 57 Fed. Appx. 68, 73 (3d Cir. 2003)).

Plaintiff has provided evidence that Defendants failed to promote him

during the relevant time period. (Doc. 136 ¶30; 48; Doc. 138-3). He has

thereby shown an adverse employment action sufficient for making out a

prima facie case of discrimination.

ii. Inference of Discrimination

The focus of Defendants’ argument on this element is that Plaintiff has

not identified similarly situated employees who were treated more favorably

than he was. The determination of whether comparator employees are

similarly situated considers factors such as “the employees’ job

responsibilities, the supervisors and decision-makers, and the nature of the

misconduct engaged in.” Chase v. Frontier Commc’ns Corp., 361 F. Supp.

3d 423, 436–37 (M.D. Pa. 2019) (quoting Wilcher v. Postmaster Gen., 441

Fed. Appx. 879, 882 (3d Cir. 2011)). “Though similarly situated does not

mean identically situated, a plaintiff must demonstrate that [he] is similar to

the alleged comparator in relevant respects.” McClung v. Songer Steel

Servs., Inc., 1 F. Supp. 3d 443, 451 (W.D. Pa. 2014) (quoting Warfield v.

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SEPTA, 460 Fed. Appx. 127, 130 (3d Cir. 2012)) (internal quotations

omitted).

Plaintiff points out that of the nine Lieutenants promoted on February

13, 2016, seven had less time in-grade than Plaintiff. (Doc. 140 at 21; Doc.

136 ¶31c). And on August 13, 2016, three Caucasian lieutenants who had

less time in-grade were promoted to Captain. (Doc. 138-3; Doc. 138-33).

Plaintiff points to further examples of Caucasian lieutenants who were

promoted to Captain in 2016 and 2017 despite less time in-grade than

Plaintiff. (Doc. 140 at 22; Doc. 138-3; Doc. 138-33).

Plaintiff asserts that these comparator employees are similarly situated

because “[t]hey were of the same rank” and all promotions to Captain were

made through the same decisionmaker—the PSP Commissioner, who

between 2015 and 2018 was Defendant Blocker. (Doc. 150-4 at 12; Doc.

138-16 at 9:8–11, 23:14–18).

Plaintiff has thus shown evidence that similarly situated Caucasian

employees—PSP lieutenants whose promotion decisions were made by the

same Commissioner—were treated more favorably by receiving promotions

despite having served less time as lieutenants. This showing gives rise to

the inference of discrimination required to make a prima facie case.

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iii. Title VII Discrimination – Conclusion

For the foregoing reasons, the court concludes that Defendants have

not identified the absence of a genuine dispute on any essential element of

Plaintiff’s Title VII discrimination claims. Therefore, Defendants’ motion for

summary judgment will be denied as to Plaintiff’s Title VII discrimination

claims.

C. Counts I & VI - Title VII Retaliation

Counts I and VI bring claims of racial discrimination against the

Commonwealth and the Pennsylvania State Police under Title VII.

Defendants argue that Plaintiff cannot establish a prima facie case for Title

VII retaliation. (Doc. 137 at 21). A prima facie case of Title VII retaliation

requires that a Plaintiff show that “(1) she engaged in activity protected by

Title VII; (2) the employer took an adverse employment action against her;

and (3) there was a causal connection between her participation in the

protected activity and the adverse employment action.” Moore v. City of

Phila., 461 F.3d 331, 340 (3d Cir. 2006).

It appears Defendants’ contention is that Plaintiff has not shown a

causal connection between protected activity and an adverse employment

action. (Doc. 137 at 21–22). A causal connection can be supported by

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circumstantial evidence, such as “temporal proximity,” “ongoing

antagonism,” or inconsistent reasons given for the adverse action. Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 280–81 (3d Cir. 2000).

In support of a causal connection, Plaintiff first submits that after he

resisted pressure from Defendants Hoke and Cain to change an officer’s

performance review, Plaintiff himself received a negative performance

review and negative endorsements. (Doc. 140 at 24; Doc. 138-14 at 65:23–

67:20; Doc. 138-15 at 77:11–80:7; Doc. 138-26; Doc. 138-13).

The negative endorsements to which Plaintiff refers were submitted in

August 2015, (Doc. 138-32), so cannot form part of Plaintiff’s Title VII claim,

as the court has dismissed Plaintiff’s Title VII claims that occurred before

September 15, 2015. (Doc. 37). As to the negative performance review, it

rates Plaintiff “Satisfactory” in most categories and “Needs Improvement” in

“Supervision/Management,” notes that Plaintiff “demonstrated his lack of

proper judgment and willingness to hold a subordinate accountable when he

completed an [Employee Performance Review] for” a station commander.

(Doc. 138-26). Although this may show a causal connection between

Plaintiff’s own negative review and his refusal to change the officer’s review,

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Plaintiff must also show that his review constitutes an adverse employment

action.

Defendants posit that Plaintiff has not pointed to evidence showing that

the review had “some tangible effect” on Plaintiff’s employment. (Doc. 149 at

15). See Storey, 390 F.3d at 764 (defining “adverse employment action,” as

required for a prima facie Title VII claim, as “an action by an employer that is

serious and tangible enough to alter an employee’s compensation, terms,

conditions, or privileges.”). Plaintiff assures the court that PSP performance

reviews “matter.” (Doc. 150-4 at 15 n.3). This assertion is not enough to raise

a genuine dispute of material fact about whether this review had a serious

and tangible effect on Plaintiff’s employment.

Plaintiff also cites an internal affairs complaint initiated by Defendants

Hoke and Cain following Plaintiff’s complaint of discrimination. (Doc. 140 at

25; Doc. 138-15 at 152:9–157:2; Doc. 138-44). Plaintiff notes that this

complaint was submitted only a few days after Plaintiff had filed a charge of

discrimination with the EEOC. (Doc. 150-4 at 15; Doc. 138-40). As with the

performance review, Plaintiff has not presented evidence that this complaint

had a serious and tangible effect on Plaintiff’s employment.

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Plaintiff further points out that he submitted an EEOC complaint on

December 21, 2016, and was passed over for promotion to Captain on

December 31, 2016 and January 28, 2017. (Doc. 150-4 at 15; Doc. 138-56;

Doc. 138-3). He also contends that the fact that Defendant Christie, who was

Deputy Commissioner of Administration and Professional Responsibilities

and would provide recommendations regarding promotions, “vetted

candidates for promotional opportunities to Captain through the EEO office”

suggests a causal connection. (Doc. 140 at 25; Doc. 150-4 at 16; Doc. 138-

18 at 9:13–14; 13:16–24, 53:23–56:6). Defendant Christie testified that she

was aware of Plaintiff’s prior EEO complaints at the time of the December 6,

2016, promotion process, but that she was not aware of any negative impact

on his promotion prospects due to his complaints. (Doc. 138-8 at 90:15–

92:13; Doc. 138-58).

The court concludes that the temporal proximity between Plaintiff’s

complaints and the promotions, together with Defendant Christie’s

awareness of Plaintiff’s complaints, would allow a factfinder to infer a causal

connection between Plaintiff’s protected activity of making complaints and

Defendants’ adverse employment action of failure to promote. Promotional

decisions were made within days and weeks of Plaintiff’s EEOC complaints,

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and Plaintiff has presented evidence that Defendant Christie was involved in

the promotion decision-making process while aware of Plaintiff’s complaints.

In addition, this inference could be supported by other evidence

plausibly suggesting a pattern of antagonism. As discussed, Plaintiff has

presented evidence that Defendants Hoke and Cain initiated an internal

affairs complaint against him following a discrimination complaint. (Doc. 138-

15 at 152:9–157:2; Doc. 138-44). Even though that may not constitute an

adverse employment action, this evidence could be relevant to a factfinder’s

evaluation of the circumstances surrounding Defendants’ alleged retaliation.

Cf. Chambers v. Pennsylvania, 2020 WL 4699045, at *9 (E.D. Pa. 2020)

(reasoning that although evidence of “alleged attempts to drug test and

surveil [the plaintiff]” and “alleged insufficient investigation of his EEO

complaints” were time-barred, “a factfinder could find them probative of

antagonism and animus). Plaintiff’s further evidence that Defendant Hoke

defied an order to reduce the internal complaint to a supervisory resolution

could also contribute to that evaluation. (Doc. 140 at 25; Doc. 138-15 at

152:23–159:5).

In sum, Defendants have not identified an absence of a genuine

dispute of material fact on any essential element of Plaintiff’s Title VII

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retaliation claims. Therefore, Defendants’ motion for summary judgment will

be denied as to Plaintiff’s Title VII retaliation claims.

D. Count I - Title VII Hostile Work Environment

Count I also brings Title VII hostile work environment claims against

the Commonwealth and the Pennsylvania State Police. Defendants have not

argued that Plaintiff has failed to make out a prima facie Title VII hostile work

environment claim. Therefore, Defendants’ motion for summary judgment

will be denied as to these claims.

E. Count II - Pennsylvania Human Relations Act

Plaintiff also asserts claims of discrimination, retaliation, and hostile

work environment against the Commonwealth and the Pennsylvania State

Police under the Pennsylvania Human Relations Act. (Doc. 79 at 21–22).

“The proper analysis under Title VII and the Pennsylvania Human Relations

Act is identical, as Pennsylvania courts have construed the protections of the

two acts interchangeably.” Huston v. Procter & Gamble Paper Prods. Corp.,

568 F.3d 100, 104 n.2 (3d Cir. 2009). As discussed above, the court

concludes that Defendants have not identified an absence of a genuine

dispute of material fact as to Plaintiff’s claims under Title VII. Therefore,

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Defendants’ motion for summary judgment will be denied as to Plaintiff’s

PHRA claims.

F. Section 1983 Claims in general

Plaintiff brings multiple claims against the individual Defendants

through 42 U.S.C. §1983, “which provides a cause of action to any individual

who has been deprived of his rights under the Constitution or other federal

laws by a person acting ‘under color of law.’” Santini v. Fuentes, 795 F.3d

410, 416 (3d Cir. 2015). Defendants correctly recognize that §1983 claims

cannot be premised on a theory of respondeat superior, and that a plaintiff

must instead show personal involvement by each defendant in the alleged

wrongs. See Millbrook v. U.S., 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014). They

assert that Plaintiff cannot do so, without further argument as how the

evidence is lacking. (Doc. 137 at 22–23).

There is some disagreement regarding the sufficiency of Defendants’

argument on this score. Plaintiff contends that it “is so poorly developed it is

almost impossible to respond to and constitutes waiver.” (Doc. 140 at 29). A

party moving for summary judgment must “show[] 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). This burden of “showing” may be

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discharged by “pointing out to the district court [] that there is an absence of

evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Although the generalized nature of Defendants’ argument limits its

force, Defendants have indeed pointed out an absence of evidence as to

individual involvement. The Complaint names as Defendants Captain

Gregory Bacher, Colonel Marcus Brown, Colonel George Bivens, Director

Wendell Morris, and Director Michael Witmer. (Doc. 79). Yet Plaintiff

presents no evidence of wrongful actions taken by these individuals. (See

Doc. 138). Plaintiff’s counter-statement of disputed material facts includes

no actions by Defendants Brown, Bivens, or Witmer, and Defendants deny

any such involvement alleged in the Complaint. (See Doc. 136; Doc. 156

¶¶99, 100, 125–26, 135). As to Defendant Morris, Plaintiff presents evidence

only that he informed Defendant Christie of Plaintiff’s EEO complaint history

upon request. (Doc. 138 ¶¶167–68, 170; Doc. 138-18; Doc. 138-82). The

court considers this evidence insufficient to create a genuine dispute of

material fact regarding Defendant Morris’ individual involvement in a violation

of Plaintiff’s rights. And it is undisputed that Defendant Bacher retired on

March 13, 2015, (Doc. 156 ¶52), more than two years before this suit was

filed. “The statute of limitations for a §1983 claim arising in Pennsylvania is

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two years,” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); so there is no

evidence of individual involvement by Defendant Bacher in the requisite time

period.

Plaintiff has presented evidence of individual involvement by the other

named Defendants. For example, there is evidence that Defendant Blocker

made decisions as to promotions. (Doc. 138-16 at 22: 24–23:18). There is

also evidence that Defendant Christie was involved in promotion decisions.

(Doc. 138-18 at 13:16–24). Finally, as discussed with regard to Plaintiff’s

Title VII claims, the record includes multiple individual actions by Defendants

Hoke and Cain, such that Defendants have not met their burden of pointing

out an absence of evidence as to them simply by asserting that there is no

personal involvement.

In sum, because evidence of individual involvement by Defendants

Bacher, Brown, Bivens, Morris, and Witmer is absent, summary judgment

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will be granted in favor of these individual Defendants as to Plaintiff’s §1983

claims.

G. Counts III & VII - Section 1981 claims against Individual

Defendants through Section 1983

Counts III and VII of the Complaint bring claims of violations of 42

U.S.C. §1981, through §1983, against the individual Defendants. (Doc. 79 at

23). Defendants argue that §1981 does not provide Plaintiff a remedy

because claims against state employees can only be brought under §1983.

(Doc. 137 at 23).

While Defendant is correct that §1981 cannot provide Plaintiff a

remedy, that is of no moment because §1983 can. McGovern v. City of

Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009), on which Defendants rely,

held that §1981 does not provide a private right of action against state actors.

The plaintiff in McGovern had failed to bring timely §1983 claims, and so

sought relief under §1981 instead. Although Jet v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 731 (1989) had rejected the existence of a private remedy

under §1981, the plaintiff in McGovern argued that the Civil Rights Act of

1991’s amendments to §1981 had superseded Jet. The Third Circuit, having

examined the decisions of other courts of appeal and the relevant legislative

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history, readopted Jet’s holding that “the express cause of action for

damages created by §1983 constitutes the exclusive federal remedy for

violation of the rights guaranteed by §1981 by state governmental units.”

McGovern, 554 F.3d at 120 (quoting Jet, 491 U.S. at 733).

So Plaintiff’s claims are not foreclosed by McGovern. Rather, he brings

his §1981 claims against state employees in exactly the way McGovern

instructs: through §1983, which “constitutes the exclusive federal remedy for

violation of the rights guaranteed in §1981.” 554 F.3d at 120. A claim that a

state actor violated a plaintiff’s rights under §1981 may only be brought

through §1983, as Plaintiff does here. See, e.g., Hill v. Borough of Colwyn,

978 F. Supp. 2d 469, 474 (E.D. Pa. 2013) (“Plaintiffs bring their §1981 claims

via §1983 because §1981 does not provide a cause of action against state

actors.”); Walker v. City of Coatesville, 2014 WL 6698304, at *2 (E.D. Pa.

2014) (“Plaintiffs seeking to enforce the protection from discrimination that

[§1981] guaranteed must still press their claims through the vehicle of 42

U.S.C. §1983.”); Moore v. Solanco Sch. Dist., 471 F. Supp. 3d 640, 664 (E.D.

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Pa. 2020) (“[T]he court will consider whether Plaintiffs’ rights under §1981

were violated by Solanco in the context of their §1983 claim.”).

Because Defendants have not identified an absence of a genuine

dispute of material fact as to Plaintiff’s §1983 claims for violations of §1981,

their motion for summary judgment will be denied as to these claims.

H. Counts IV & VIII - Equal Protection claims

Counts IV and VIII bring claims of violations of the Equal Protection

Clause of the Fourteenth Amendment against the individual Defendants

through §1983. (Doc. 79 at 26). Defendants do not attempt to identify any

absence of evidence as to these claims specifically. Therefore, Defendants’

motion for summary judgment as to Plaintiff’s equal protection claims will be

denied.

I. Count V - First Amendment Retaliation

Finally, through §1983, Plaintiff brings claims of First Amendment

retaliation against the individual Defendants. Defendants’ argument for

summary judgment on these claims consists of a statement of law regarding

the required showing for a prima facie First Amendment retaliation claim.

(Doc. 137 at 23). See Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.

2006) (“To state a First Amendment retaliation claim, a plaintiff must allege

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two things: (1) that the activity in question is protected by the First

Amendment, and (2) that the protected activity was a substantial factor in the

alleged retaliatory action.”). Assuming Defendants’ contention is that Plaintiff

has failed to present a prima facie First Amendment claim, the court agrees.

“A public employee’s statement is protected by the First Amendment

when ‘(1) in making it, the employee spoke as a citizen, (2) the statement

involved a matter of public concern, and (3) the government employer did

not have ‘an adequate justification for treating the employee differently from

any other member of the general public as a result of the statement he

made.’” Gorum v. Sessons, 561 F.3d 179, 185 (3d Cir. 2009) (quoting Hill,

455 F.3d at 241)).

Without citing authority, Plaintiff asserts that “[a]n EEO complaint or a

lawsuit is clearly protected activity under the petition clause of the First

Amendment.” (Doc. 140 at 30). There is no evidence Plaintiff was faced with

retaliation for filing this lawsuit; to the contrary, the suit was originally filed on

December 29, 2017, (Doc. 1), and Plaintiff was promoted to Captain in

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February 2018. (Doc. 138 ¶31). The question, then, is whether Plaintiff’s

filing an EEO complaint is an activity protected by the First Amendment.

Plaintiff contends that his complaint is protected under the First

Amendment’s Petition Clause. See U.S. Const. amend. I (“Congress shall

make no law … abridging … the right of the people … to petition the

Government for a redress of grievances.”). As with any public employee

speech, a petition only triggers First Amendment protection when it is “on a

matter of public concern,” and if it is, “the employee’s First Amendment

interest must be balanced against the countervailing interest of the

government in the effective and efficient management of its internal affairs.”

Borough of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011). “Speech deals

with matters of public concern when it can ‘be fairly considered as relating to

any matter of political, social, or other concern to the community,’ or ‘when it

is a subject of legitimate news interest; that is, a subject of general interest

and of value and concern to the public.’” Snyder v. Phelps, 562 U.S. 443,

453 (2011) (first quoting Connick v. Myers, 461 U.S. 138, 146 (1983); then

quoting City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004)).

The court concludes that Plaintiff’s filing of an EEO complaint was not

a petition on a matter of public concern. Plaintiff’s complaints allege that

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certain employment decisions made by his superior officers constituted

discrimination and retaliation against him. (See, e.g., Doc. 138-40, Doc. 138-

72). This matter was thus personal to Plaintiff, and did not involve a matter

of public importance. Through this petition he was not “seek[ing] to

participate, as a citizen, in the process of deliberative democracy.” Guarnieri,

564 U.S. at 398. Neither was he “seek[ing] to communicate to the public or

to advance a political or social point of view beyond the employment context.”

Id. He simply sought redress for wrongs that he allegedly suffered during his

employment, by means of a private complaint2—as such, it was a matter of

private concern, and not protected by the First Amendment.

This conclusion is consistent with that of other courts in this circuit.

Shari v. Manning, 2013 WL 3754818, at *12 (M.D. Pa. 2013), for example,

concluded that a PSP officer’s EEO complaint, which alleged discrimination

by the officer’s superior, was not on a matter of public concern because it

was “confidential and not an attempt to communicate publicly.” The court in

Holt v. Pennsylvania, 2014 WL 2880376, at *15 (E.D. Pa. 2014) also

2 EEOC charge information is not disclosed to the public. See

Confidentiality, U.S. Equal Emp. Opportunity Comm’n,

https://www.eeoc.gov/confidentiality.

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concluded that “the mere filing of an internal EEO complaint itself is not a

matter of public concern.” Likewise, a plaintiff’s EEO discrimination complaint

was not on a matter of public concern where its “consistent suggestion was

that she was the sole target of discrimination by other officers at the PSP …

and never implied any broader significance to the behavior that she

recounted.” McCartney v. Pa. State Police, 2011 WL 3418381, at *31 (M.D.

Pa. 2011).

Because Plaintiff’s EEO complaint was not on a matter of public

concern, it was not protected by the First Amendment. Plaintiff has therefore

not established a prima facie First Amendment retaliation claim, and the

Defendants’ motion for summary judgment will be granted as to this claim.

V. CONCLUSION

In accordance with the foregoing discussion: Plaintiff’s motion to strike,

(Doc. 142) will be DENIED. Defendant’s motion for summary judgment will

be GRANTED as to Defendants Bacher, Brown, Bivens, Morris, and Witmer,

and as to Plaintiff’s First Amendment retaliation claims. Defendants’ motion

for summary judgment will be DENIED as to Plaintiff’s other claims. Because

there are no remaining claims against them, Defendants Bacher, Brown,

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Bivens, Morris, and Witmer will be DISMISSED. An appropriate order will

follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: November 3, 2023

18-1593-05

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