# Cox v. SEPTA

> District Court, E.D. Pennsylvania · December 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10771326

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KADY-ANN COX, CIVIL ACTION
Plaintiff,

v.

SEPTA and POLICE CHIEF THOMAS NO. 21-CV-04542
NESTEL,
Defendants.

MEMORANDUM
HODGE, J. December 26, 2024
Plaintiff Kady Ann Cox, a former Southeastern Pennsylvania Transportation Authority
(“SEPTA”) transit officer, brings this employment discrimination case against Defendants SEPTA
and former SEPTA Police Chief Thomas Nestel, in his official capacity, following her termination
from SEPTA. She alleges that SEPTA violated Title VII of the Civil Rights Act, the Pennsylvania
Human Rights Act (“PHRA”), and § 1983, and brings claims against former Chief Nestel for
PHRA and §1983 violations. Defendants move for summary judgment on all claims. For the
reasons that follow, Defendants’ Motion for Summary Judgment is granted.
I. BACKGROUND1
Plaintiff Kady Ann Cox is an African American woman who began working for SEPTA
as a Transit Officer in March 2017. (ECF No. 1 ¶ 7; ECF No. 32-4 at 34:7-11.) During her
employment, Plaintiff was a member of the Fraternal Order of Transit Police (“FOTP”), the union
that represents SEPTA transit police officers. (ECF No. 32-4 at 23:10-13.) In or about December
2018, Plaintiff was assigned to work out of the Frankford Transportation Center (“FTC”), District
4. (ECF No 36-7 ¶ 3.)

1 The Court adopts the pagination supplied by the CM/ECF docketing system.
A. Incident at Frankford Transportation Center
On September 28, 2019, Plaintiff was on duty at FTC and responded to a radio call stating
that a suspect, Ms. Howard, was causing a disturbance at a store within the FTC. (ECF No. 1 ¶ 14;
ECF No. 32-4 at 81:9-16.) By the time Plaintiff responded to the scene, Howard had left the store.

(ECF No. 32-4 at 82:1-5.) However, Plaintiff, who had encountered Ms. Howard in the past,
continued to patrol the area looking for Howard. (Id. at 82:8-12.) When Plaintiff spotted Howard,
Plaintiff told Howard that she was not allowed to be there and grabbed her shoulder to escort her
away. (Id. at 82:13-23.) Ms. Howard then hit Plaintiff in the face. (Id.) Plaintiff and Howard then
engaged in a physical confrontation, wherein Plaintiff hit Ms. Howard and the two “began
fighting.” (Id. at 87:22-88:2.) During the altercation between Plaintiff and Howard, another transit
officer, Officer Sannini, arrived on the scene and pulled Ms. Howard off of Plaintiff. (Id. at 88:4-
14.) At least three additional officers also responded to the scene and surrounded Ms. Howard. (Id.
at 90:14-91:8.) At that point, there was some distance and at least three officers between Plaintiff
and Ms. Howard. (Id. at 91:19-24.)

Defendants have produced video from the Body Worn Cameras (“BWC”) of several
officers who were at the FTC during the incident. (See generally ECF Nos. 32-6; 32-8; 32-9.) The
BWC video shows Howard, her lip covered in blood, repeatedly crying, “she hit me,” while a
responding officer holds Howard’s arms back and down. (ECF No. 32-6 at 00:11-00:35.) The
officer then leads Howard to a bus stop bench, where she starts to sit down. (ECF No. 32-6 at
00:33.) Plaintiff can be seen following behind the officer and Howard, smiling. (ECF No. 32-7 at
00:08.) Plaintiff then approaches Howard and says, “I hit you?” and swings her hands towards
Howard. (ECF No. 32-15 at 7; 32-4 at 16-18.) Plaintiff then says, “Now I fucking hit you.” (ECF
No. 32-4 at 16-18.) A bystander can be heard exclaiming “You did not have to hit her just now!
You was wrong! Why the fuck you hit her like that just now?” (ECF No. 32-7 at 00:22.)
Multiple officers then again restrain Howard. (ECF No. 32-6 at 00:50; ECF No. 32-8 at
00:01.) As Plaintiff continues to engage Howard, Officer Brady counsels Plaintiff that the situation

is not worth losing her job over. (ECF No. 32-4 at 24.) A fellow transit officer says, “Relax! Kady
relax, please, stop, you’re making it worse. Calm down.” (ECF No. 32-8 at 1:15.) Plaintiff
approaches Howard, and Howard leans over and spits toward Plaintiff. (ECF No. 32-8 at 01:26.)
Plaintiff then yells, “You spit on me!” and pushes toward Howard, while another officer grabs
Plaintiff’s vest and pushes her backward. (ECF No. 32-8 at 01:32.) Plaintiff says, “Don’t fucking
play with me.” (ECF No. 32-8 at 1:35.) An officer says to Plaintiff, “Kady you can’t do this, it
doesn’t matter, you’re going to lose your job.” (ECF No. 32-8 at 01:44.) Plaintiff can be seen
holding her baton and jamming it against a wall. (ECF No. 32-8 at 1:44.) Plaintiff then puts her
baton away, paces for a moment, then smiles and points at Howard. (ECF No. 32-8 at 02:10.) The
other officer then says, “Put that away. Do you know how bad it looks? Kady, don’t do nothing in

front of [unintelligible] people. (ECF No. 32-8 at 02:53.) Shortly after, another officer asks
Plaintiff to go get a patrol car and “cool off.” (ECF No. 32-8 at 04:15).
B. Internal Affairs Investigation
Following the incident at the FTC involving Plaintiff and Ms. Howard, SEPTA’s Internal
Affairs department conducted an investigation. (ECF No. 32-15 at 2.) While the investigation was
ongoing, Plaintiff was pulled off her patrol assignments and reassigned to the Legal Department
to perform “virtual patrol.” (ECF 36-7 at ¶ 7.) As part of the investigation, Internal Affairs
interviewed Plaintiff three times— October 25, 2019, November 1, 2019, and November 19, 2019.
(ECF No. 32-15 at 5.) A memorandum summarizing the Internal Affairs investigation was
prepared by Sergeant Devon M. Isaac and provided to SEPTA Police Chief Nestel on November
21, 2019. (See generally ECF No. 32-15.) The memo indicates that Internal Affairs found that
“Cox unequivocally punched a person in the face, despite the fact that the person was no longer
engaged with Cox and was no longer a threat.” (Id. at 12). The memo also stated, “there is evidence

to suggest that Cox may have lied during the Internal Affairs investigation.” (Id.) In the first two
interviews with Internal Affairs, Plaintiff “maintained that she swung at the woman, but she was
not sure if the punch landed,” although the BWC footage clearly shows her punching Ms. Howard
and taunting her about doing so. (Id.) The memo indicated that “Cox lied a second time when she
was shown the [BWC] footage of her arm punching Howard, but Cox denied that it was her arm.”
(Id.) Finally, during the third interview, Plaintiff “admitted that she punched Howard, but she
continued to lie about whether or not her arm was pictured in the video punching Howard.” (Id.)
The investigator concluded that Plaintiff violated the following SEPTA Police Department
Policies:
1. 404.4.1 USE OF FORCE IN GENERAL: The response to resistance should be in direct

relationship to the amount of resistance encountered or the threat to the officer or another.
The response to resistance will be progressive in nature and may be in the form of verbal,
physical, non-lethal or lethal force. No officer will use unreasonable or excessive force
towards any person.
2. 405.2.1 It is the policy of the SEPTA Transit Police Department that the response to
resistance, as described in this directive, shall be reported in a timely, complete, and
accurate manner by involved officers. (Officer Cox did not document striking Ms. Howard
in the face after they were separated)2

2 Parenthetical in original document. (ECF No. 32-15 at 12-13.)
3. 508.7.1 Conduct indicating that a member has little or no regard for his/her responsibilities
as a member of the SEPTA Police Department
4. 508.7.1 Making an untruthful statement in the presence of any supervisor.
(ECF No. 32-15 at 12-13.) (emphasis in original).

Following its investigation, SEPTA Internal Affairs convened a Police Board of Inquiry
(“PBI”) to determine whether Plaintiff had in fact violated SEPTA Transit Police Department
policies and procedures during the FTC incident. (See generally ECF No. 32-9.) The PBI upheld
the Internal Affairs investigation, finding that there was sufficient evidence that Plaintiff violated
SEPTA Transit Police policy. (ECF No. 32-21 at 3.) The PBI noted that the first instance in which
Plaintiff engaged in a physical altercation with Howard before other officers arrived was not
violative of policy, because “grappling and striking would have been authorized during that time
frame to defend herself.” (ECF No. 32-21 at 3.) The PBI found, however, that “[t]he totality of
circumstances . . . show that Officer Cox . . . has little or no regard for her responsibilities as a
member of the SEPTA Transit Police Department. This includes Officer Cox losing emotional

control and applying the unnecessary use of force to the point where she had to be restrained by
fellow officers and her subsequent Internal Affairs statements being inconsistent and not
forthcoming.” (ECF No. 32-21 at 3.) The Board recommended that Plaintiff be discharged from
duty. (ECF No. 32-21 at 3.)
On December 4, 2019, Chief Nestel was sent the PBI recommendation that Plaintiff be
discharged for violations of SEPTA directives 404.4.1 (Response to Resistance), 508.5.1 (Failure
to Comply), , 508.7.1 (Conduct Indicating Little or No Regard), and 508.7.1 (Making an Untruthful
Statement). (ECF No. 32-23 at 2.) Chief Nestel replied, instructing that SEPTA “[m]ove forward
with the discipline.” (Id.) Plaintiff and a FOTP representative signed a Discipline Issuance Notice
on December 6, 2019. (ECF No. 32-22.) Plaintiff’s last day of service was December 6, 2019, and
she was terminated on December 7, 2019. (ECF No. 32-5 at 2.)
C. Referral to Philadelphia District Attorney’s Office
SEPTA Transit Police Department Directive 100 states that, “pursuant to existing case law

and the Philadelphia District Attorney’s Office policy, the Transit Police are required to notify the
DAO . . . . When an officer is the subject of an internal investigation which results in a founded
finding or conclusion by the department for any of the following: . . . b. Lack of truthfulness or
deception regarding facts in a report, statement, or testimony at a hearing or other official
proceeding or investigation concerning on duty conduct of the officer or others.” (ECF No. 32-16
at 10-11.) The directive further states that,
Members placed on a [Police Misconduct Disclosure] list will be subject to an
internal investigation which will determine whether placement on the list is justified
and whether the member’s ability to fulfill his/her duties as a police officer would
be hampered by inclusion on a PMD. A determination that placement on the PMD
is appropriate and that the member’s ability to continue performing as a police
officer has been negatively affected would constitute a dischargeable offense.

(ECF No. 32-16 at 10-11.)
The Police Misconduct Disclosure List was established by Philadelphia District Attorney
Lawrence Krasner. (ECF No. 32-18 at 82:12-16.) According to Chief Nestel, DA Krasner
established the Police Misconduct Disclosure List—a list of officers who lied and thus could no
longer be found credible in court—so that those officers could not longer appear in court and
testify. (ECF No. 32-18 at 83:14-21.)
At some point after the FTC incident and during the subsequent investigation, SEPTA
referred Plaintiff to the Philadelphia District Attorney’s Office (“DAO”). (ECF No. 32-1 at 17.)
The exact date of the referral is not clear from the record. Following the referral, the District
Attorney’s Office made the determination that Plaintiff would be placed on the Police Misconduct
Disclosure List. (ECF No. 32-18 at 83:1-6.) As a result, she was not able to appear in court and
testify. (Id. at 83:7-12.) Chief Nestel testified that as a result of being unable to testify in court,
any arrest Plaintiff made “would be lost.” (Id.)
D. Termination and Appeal

Following her termination, Plaintiff filed a grievance through the FOTP, challenging
SEPTA’s decision to terminate her. (ECF No. 32-4 at 154:21-155:1.) SEPTA denied this
grievance. (See generally ECF No. 32-24.) In its denial, SEPTA noted that Plaintiff punched
Howard “without provocation” and “expressed pleasure in her actions.” (ECF No. 32-24 at 2.) The
denial also stated that SEPTA was “not persuaded by the Union’s argument that Cox didn’t lie
during the internal affairs investigation.” (Id.)
Plaintiff and FOTP then filed a grievance alleging that SEPTA violated the Collective
Bargaining Agreement when it discharged Plaintiff for violating Directive 404 (Response to
Resistance) and Directive 508 (Disciplinary Code). (ECF No. 32-26 at 3.) Following an arbitration
proceeding, on August 14, 2020, the arbitrator denied the grievance. (ECF No. 32-26 at 19.)

On September 20, 2021, Plaintiff was issued a Right to Sue Notice by the EEOC. She
commenced the present lawsuit on September 23, 2021.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, a court must 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). A fact is material if it could affect the outcome
of the suit, given the applicable substantive law, and a dispute is genuine if the evidence presented
is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a summary judgment motion, a court “must
view the facts in the light most favorable to the non-moving party,” and make every reasonable
inference in that party’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir.
2005).
The party opposing summary judgment must support each essential element of the

opposition with concrete evidence in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. Anderson, 477 U.S. at 249-50 (internal citations omitted). This requirement
upholds the “underlying purpose of summary judgment [which] is to avoid a pointless trial in cases
where it is unnecessary and would only cause delay and expense.” Walden v. Saint Gobain Corp.,
323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566,
573 (3d Cir. 1976)). Therefore, if after making all reasonable inferences in favor of the non-moving
party, the court determines there is no genuine dispute as to any material fact, then summary
judgment is appropriate. Wisniewski v. JohnsManville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
III. DISCUSSION

A. Plaintiff’s Opposition Brief
As an initial matter, the Court will briefly respond to the arguments Defendants make in
their reply brief (ECF No. 44) regarding the insufficiency of Plaintiff’s Opposition to the Motion
for Summary Judgment (ECF No. 36). Defendants assert that “[a] large portion of Plaintiff’s
Statement of Disputed Material Facts in Opposition to Defendants’ Motion for Summary Judgment
(ECF No. 36-1) and Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for
Summary Judgment . . . consist of unsupported factual assertions and legal conclusions that are
not based in any competent record evidence, and do not even contain citations to the record (or in
some cases, the law).” (ECF No. 44 at 1-2.) Defendants contend that Plaintiff’s brief contains many
factual assertions without citation to the record, and where there are citations, Plaintiff regularly
mischaracterizes both the record and the law to her benefit. (Id. at 2-3.)
Generally, the Court agrees with Defendants’ characterization of Plaintiff’s opposition
brief. The Court will not point out every deficiency, but as a general proposition, it is not the

responsibility of the Court to dig through the record and find evidence to support a party’s
assertions. The Court has not considered portions of the brief where Plaintiff has neglected to cite
to the record, for example, Plaintiff’s “Introductory Statement.” (ECF No. 36 at 1-6.) When
relevant, the Court has also pointed out instances where Defendant has mischaracterized case law
and has only relied on case law that actually stands for the proposition for which it is asserted.
In addition, Plaintiff’s “Declaration,” contains numerous factual and legal conclusions for
which Plaintiff has no firsthand knowledge, as is required in a declaration. (ECF No. 36-7.) “An
affidavit or declaration used to support or oppose a motion must be made on personal knowledge.”
Fed. R. Civ. P. 56(c)(4) (emphasis added). Applying this standard, the Court has only relied on ¶¶
1-11 and 13 of Plaintiff’s Declaration.

B. Claims under Title VII and the PHRA
Title VII prohibits employers from failing to hire, discharging, or otherwise discriminating
against “any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin” 42 U.S.C.
§ 2000e-2(a)(1). Because the analysis required for adjudicating Plaintiff's Title VII and PHRA
claims is identical, the Court will consider those two claims together. See Goosby v. Johnson &
Johnson Med., Inc., 228 F.3d 313, 317, n. 3 (3d Cir.2000). In the absence of direct evidence of
discrimination, the Supreme Court has set out a framework to analyze claims of racial
discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, the plaintiff must prove by a preponderance of the evidence a prima facie case of
discrimination. Id. at 802. If the plaintiff establishes a prima facie case of discrimination, a
“presumption” of discrimination is created and the burden of production shifts to the defendant to
articulate a legitimate nondiscriminatory reason for the adverse employment action. Id. at 802–03.

In order for defendants to sustain this burden, they “need not persuade the court that [the adverse
employment action] was actually motivated by the proffered reasons.” Texas Dept. of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981). The defendant satisfies its burden of production, and rebuts
the plaintiff's prima facie showing of discrimination, simply by introducing admissible evidence
that, if taken as true, would permit a finding that the challenged employment action was taken for
legitimate, nondiscriminatory reasons. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
The inquiry concerning whether the defendant has met its burden of production “can involve no
credibility assessment,” since “the burden-of-production determination necessarily precedes the
credibility-assessment stage.” Id.
If the employer meets its burden of production, the presumption of discrimination created

by plaintiff's prima facie case “drops out of the picture.” Id. at 511 (citing McDonnell Douglas).
In order to establish that the defendant is liable for illegal employment discrimination, the plaintiff
must ultimately convince the trier of fact that a discriminatory animus was the real reason for the
adverse employment action at issue. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994).
1. Plaintiff’s Prima Facie Case of Discrimination
To establish a prima facie case of employment discrimination, a plaintiff must demonstrate
by a preponderance of the evidence that, “(1) the plaintiff is a member of a protected class; (2) the
plaintiff was qualified for the position that he sought to retain; (3) the plaintiff suffered an adverse
employment action, e.g., the termination of his employment; and (4) the adverse employment
action occurred under circumstances that could give rise to an inference of intentional
discrimination.” Greene v. Virgin Islands Water & Power Auth., 557 F. App'x 189, 195 (3d Cir.
2014) (internal citations omitted).
For the purpose of their summary judgment motion only, Defendants do not dispute that

Plaintiff is a member of a protected class and suffered an adverse employment action. (ECF No.
32-1 at 16.) However, Defendants state that Plaintiff has failed to establish prongs (2) and (4) of
the prima facie test. They argue that she was unqualified for her position because her dishonesty
during the Internal Affairs investigation rendered her unqualified for her role as a SEPTA officer.
(Id.) Defendants also state that Plaintiff cannot establish any inference of discrimination, nor can
she demonstrate that similarly situated Caucasian officers were treated more favorably than she.
(Id.)
a. Plaintiff’s Qualification for Her Position as a SEPTA Officer
When assessing job qualification at the prima facie stage, Courts apply an objective
standard, looking at only “the bare minimum requirement necessary to perform the job at issue.

Typically, this minimum requirement will take the form of some type of licensing requirement,
such as a medical, law, or pilot's license, or an analogous requirement measured by an external or
independent body rather than the court or the jury.” Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir.
2008). In Makky, the Plaintiff, an engineer with the Transportation Security Administration, had
his security clearance suspended, rendering him unable to access National Security Information,
which was necessary to perform his job duties. Id. at 216. The Court found that the Plaintiff was
no longer qualified for his role, noting, “the lack of a security clearance in a position such as
Makky's is akin to the lack of a license in a position such as a medical doctor because without a
security clearance Makky's subjective qualifications are irrelevant.” Id.
Defendants argue that Plaintiff’s being placed on the District Attorney’s Office Police
Misconduct List rendered her unable to perform a core function of her role, and thus, disqualified
her from performing her job as a SEPTA officer. (ECF No. 32-1 at 17.) In his deposition, Chief
Nestel testified that if an officer cannot testify in court, “any arrests that they would make would

be . . . lost,” and that testifying in court is a core job responsibility for SEPTA police officers. (ECF
No. 32-18 at 82:16-24.) Like in Makky, Plaintiff’s actions resulted in her being unable to perform
a core function of her role. Plaintiff’s inability to testify in court is akin to the lack of a necessary
professional license.
Plaintiff does not address Defendants’ argument that she was unqualified for the position
beyond a single statement in her opposition brief that “she was hired as a police officer at SEPTA
and therefore was qualified for the position.” (ECF No. 36 at 11.) This statement alone, with no
citation to evidence, does not refute Defendants’ assertion that Plaintiff’s actions during the FTC
incident and the subsequent Internal Affairs investigation disqualified her from her job at SEPTA.
The Court finds there is no genuine dispute as to the fact that Plaintiff was no longer qualified for

her role when she was terminated.
This finding alone is sufficient to hold that Plaintiff has failed to establish a prima facie
case of employment discrimination. However, given Plaintiff’s focus on comparators, the Court
will address the fourth element of the test as well.
b. Whether the Circumstances Could Give Rise to an Inference of
Intentional Discrimination

The fourth prong of the test for a prima facie case of race discrimination requires Plaintiff
to show that “the adverse employment action occurred under circumstances that could give rise to
an inference of intentional discrimination.” Greene, 557 F. App'x at 195. “To establish the fourth
element, a plaintiff may either: (1) introduce evidence of comparators (i.e., similarly situated
employees who (a) were not members of the same protected class and (b) were treated more
favorably under similar circumstances); or (2) rely on circumstantial evidence that otherwise
shows a causal nexus between [Plaintiff’s] membership in a protected class and the adverse
employment action.” Id.

i. Comparator Evidence
Plaintiff relies primarily on purported comparators who, she alleges, are similarly situated
employees who were not members of the same protected class and were treated more favorably
under similar circumstances. In her complaint, Plaintiff identifies five Caucasian SEPTA
employees who, she alleges, engaged in “similar or worse misconduct than what Defendants
alleged Plaintiff engaged in.” (ECF No. 1 ¶ 21.) These purported comparators are Officer Samuel
Lynch, Officer Harry Dougherty3, Officer Sinkiewicz4, Officer Cory Fox, and Detective Bryan
McCauley5, each of whom, Plaintiff alleges, violated SEPTA policy and was not terminated for
his actions. (Id. ¶¶ 22-26.)
Defendants argue that none of the SEPTA employees Plaintiff identifies are proper

comparators under Third Circuit precedent. (ECF No. 32-1 at 22.) In order for employees to be
considered similarly situated, courts “look to the job function, level of supervisory responsibility
and salary, as well as other factors relevant to the particular workplace. This determination requires
a court to undertake a fact-intensive inquiry on a case-by-case basis rather than in a mechanistic
and inflexible manner.” Peake v. Pennsylvania State Police, 644 F. App'x 148, 151 (3d Cir. 2016)
(quoting Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 305 (3d Cir. 2004)). Courts look to factors

3 Defendants address claims about Officer Dougherty in their brief, however, Plaintiff does not address
Officer Dougherty at all in her Opposition brief, thus, the Court considers any claims about him to have been
abandoned and will not address them.
4 In her complaint, Plaintiff refers to Officer “Sinckowitz.” The Court will use what it understands to be the
proper spelling of Officer Sinkiewicz’s last name.
5 In her complaint, Plaintiff refers to McCauley as officer. However, the record shows that he was in fact a
Detective, therefore, a different rank than Plaintiff. (ECF No. 32-18 at 13:7-9.)
such as whether “the two employees dealt with the same supervisor, were subject to the same
standards, and had engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer's treatment of them.” Opsatnik
v. Norfolk S. Corp., 335 F. App'x 220, 223 (3d Cir. 2009) (internal citations omitted).

Defendants argue that “Plaintiff focused her discovery efforts on other police officers who
engaged only in varying levels of force, which misses the mark because the evidence shows that
SEPTA terminated Plaintiff’s employment based on her conduct during the investigation into her
response to resistance, including ‘[her] lack of candor.’” (ECF No. 32-1 at 22.) According to
Defendants, “any officers who Plaintiff may attempt to put forth as comparators based on that
officer’s use of force will fail, as they cannot be considered proper comparators under Third Circuit
case law if they engaged in conduct different than that for which Plaintiff was terminated.” (Id. at
23).
Plaintiff devotes a considerable amount of her Opposition Brief to discussion about
Officers Lynch and Sinkiewicz, who, by Plaintiff’s own admission, were disciplined for incidents

regarding uses of excessive force. (ECF No. 36 at 12-22; 25-26.) Plaintiff’s brief restates her
complaint’s detailed description of these incidents involving use of force but does not address
Defendant’s arguments that these incidents are distinguishable from Plaintiff’s situation. (Id.)
Plaintiff’s brief also seems to make the argument, without evidence, that Officer Lynch
made false statements and was not disciplined for them. (ECF No. 36 at 14.) Plaintiff states that
“[Sergeant] Albertini admitted that Lynch gave a false statement in his R2R as compared to what
was shown on the platform video.” (Id.) However, the Court agrees with Defendants that Plaintiff
mischaracterizes Sergeant Albertini’s deposition testimony to make this claim. (ECF No. 44 at 2,
citing ECF No. 36 at 14.) Albertini never states that Lynch made a false statement, and Plaintiff
does not point to any other evidence in the record indicating that SEPTA found that Officer Lynch
made false statements.
The Court agrees with Defendants that officers who were disciplined only for engaging in
varying levels of force, including Officers Lynch and Sinkiewicz, are not proper comparators to

Plaintiff. The record is clear that Plaintiff was found to have violated SEPTA’s policy regarding
response to resistance but was ultimately terminated for her untruthful statements during the
internal affairs investigation. The law in this Circuit is also clear that employees are not similarly
situated when their conduct is not similar. See Oakley v. Orthopaedic Assocs. of Allentown, Ltd.,
742 F. Supp. 2d 601, 608 (E.D. Pa. 2010) (“[E]mployees are similarly situated when their conduct
on the job-or misconduct-is similar in nature.”); see also McCullers v. Napolitano, 427 F. App'x
190, 195 (3d Cir. 2011). There is no genuine dispute of fact that these officers, who were
disciplined for meaningfully different conduct, are not proper comparators.
Defendants also argue that Officer Fox and Detective McCauley are not proper
comparators. (ECF No. 32-1 at 23.) Officer Fox was charged for “making a false entry on a SEPTA

report or record.” (ECF No. 34-1.) Officer Fox was not disciplined for lying during the subsequent
Internal Affairs investigation into his conduct; Officer Fox admitted to SEPTA Internal Affairs
that he made a false report. (ECF No. 36-9 at 27:6-10.) In addition, Officer Fox was disciplined in
2014, before the policy was instituted of referring officers who lied to the Philadelphia District
Attorney’s Office to potentially be placed on the Police Misconduct Disclosure List. (ECF No. 32-
18 at 82:5-11.) Defendants argue that the fact that Officer Fox’s misconduct is distinguishable
from Plaintiff because Officer Fox was disciplined for a single lie, and that lie was itself the
underlying incident, while Plaintiff engaged in separate misconduct during her altercation with
Ms. Howard, then subsequently lied multiple times during the Internal Affairs investigation. (ECF
No. 32-1 at 24.) Defendants also contend that because the Police Misconduct Disclosure List
policy was not in place when Officer Fox was disciplined, he was not at risk of losing his ability
to be subpoenaed and therefore becoming unqualified for his role. (Id.)
Defendants also argue that Detective McCauley is not a proper comparator, because he was

a detective, while Plaintiff was an officer, and employees of different positions are not proper
comparators. (ECF No. 32-1 at 25; ECF No. 32-18 at 13:7-9.) Defendants also distinguish between
Plaintiff and Detective McCauley because Detective McCauley reported directly to former Chief
Nestel, while Plaintiff did not. (ECF No. 32-18 at 13:4-6.) In addition, termination was in fact
recommended as punishment for Detective McCauley’s misconduct. (ECF No. 32-1 at 25.)
Plaintiff’s distinction between her own termination and Detective McCauley’s appears to rely on
the fact that Detective McCauley resigned, while she was terminated. (ECF No. 36 at 27.)
Defendants argue that Detective McCauley asked to resign, while Plaintiff did not request that
option. (ECF No. 32-1 at 25.)
The Court agrees with Defendants that neither Officer Fox nor Detective McCauley are

proper comparators. Plaintiff’s untruthful statement was the underlying event that led to her being
disciplined. Plaintiff engaged in separate misconduct—her use of force—and then twice lied to
investigators about the incident. (ECF No. 32-1 at 23-24). These incidents involving the Plaintiff
are not comparable to the circumstances that led to the purported comparators’ discipline. In
addition, as the Court has already determined, being placed on the DA’s Police Misconduct
Disclosure List renders an officer unqualified to perform their job. The policy of referring officers
to the DA was not yet instituted when Officer Fox was disciplined, therefore, he was not put on
the list. (ECF No. 32-18 at 82:5-11.) That change in policy constitutes a “differentiating . . .
circumstance” that distinguishes SEPTA’s treatment of Plaintiff versus Officer Fox. Ballard v.
Mercy Catholic Med. Ctr., No. 12-0779, 2013 U.S. Dist. LEXIS 92108, at *15 (E.D. Pa. June 28,
2013).
With respect to Detective McCauley’s termination, the fact that he was of a different rank
and had a different supervisor than Plaintiff is dispositive in establishing that he is not a proper

comparator to Plaintiff. See Wilcher v. Postmaster Gen., 441 F. App'x 879, 882 (3d Cir. 2011)
(“[A]lthough the postmaster was disciplined for the same misconduct as [Plaintiff], she is
nonetheless not comparable because she held a superior position and thus it was at the discretion
of a different supervisor not to terminate her.”). Again, there is no genuine dispute of material fact
that the officers Plaintiff offers as comparators are not similar situated to her.
ii. Circumstantial Evidence
In addition to introducing purported comparators, Plaintiff offers circumstantial evidence
of discriminatory conduct by Defendants. Plaintiff seems to rely on a single piece of circumstantial
evidence—“the outrageous racially discriminatory conduct of Officer McCauley and how
favorably he was treated by Defendants,” including that “he was not terminated but allowed to

resign in lieu of termination, and then sent a letter of regret by Chief Nestel for no longer working
for him at SEPTA.” (ECF No. 36 at 37.) Plaintiff asserts that “[t]his conduct of condoning racist
behavior in the Police Department by Defendants, in of itself, is circumstantial evidence of
Defendants’ motives, state of mind and culture in which the adverse actions taken against Plaintiff
was made. A reasonable jury can consider all the totality of the circumstances in this case and
decide that Plaintiff was subjected to race discriminatory adverse actions by Defendants.” (Id.)
As Defendants point out in their reply brief, in making this claim, Plaintiff relies almost
exclusively on caselaw that is inapplicable to this case. (See ECF No. 44 at 7-9.) In order to meet
the proper standard for showing evidence that could give rise to an inference of discrimination,
Plaintiff must “establish a causal nexus between the termination of his employment and his
membership in a protected class.” Greene, 557 F. App'x at 196. Plaintiff has failed to do that here.
First, Plaintiff has not shown that Detective McCauley’s conduct, regardless of how
offensive it was, is evidence of discriminatory motive on the part of SEPTA or Chief Nestel.

Defendants correctly note that “McCauley was not a company executive and was not speaking on
employment practices or managerial policy when he engaged in the conduct that ultimately
resulted in his termination.” (ECF No. 44 at 9.) Nor was Detective McCauley “involved in the
investigation into Plaintiff’s conduct or her subsequent termination.” (Id.)
Plaintiff has also failed to offer any evidence of a discriminatory motive on the part of
SEPTA or Chief Nestel. Plaintiff relies on the fact that Detective McCauley resigned rather than
being terminated, and that Chief Nestel sent Detective McCauley a “letter of regret” following his
leaving SEPTA. (ECF No. 36 at 37.) Although Plaintiff seems to be making the argument that the
record shows that Detective McCauley was offered special treatment in being able to resign, the
record evidence that Plaintiff points to—Chief Nestel’s deposition testimony—states that “[the

opportunity to resign] is offered to every employee who is being notified that they’re being
terminated.” (ECF No. 36-3 at 70, 30:17-24.) In addition, Plaintiff has not substantiated her claim
Chief Nestel “condoned” Detective McCauley’s actions. (ECF No. 36 at 37.) It was Chief Nestel
who informed Detective McCauley that he was being terminated. (ECF No. 36-3 at 20-23.) The
letter Chief Nestel sent Detective McCauley does not contain any statements that suggest that
Chief Nestel thought McCauley’s actions were acceptable, or that he should not have been
terminated. (ECF No. 36-5.)
Moreover, Defendants argue that by admitting “in her deposition to initially denying
knowing whether she struck Ms. Howard in the first two interviews and then admitting that she
did strike her in the third interview with Internal Affairs, Plaintiff essentially conceded that she
was not candid during the first two interviews with Internal Affairs.” (ECF No. 32-1 at 18.)
According to Defendants, Plaintiff’s admission as to the conduct for which she was terminated
undermines her claim that her race was part of SEPTA’s determination to terminate her

employment. (Id.)
The circumstantial evidence Plaintiff offers does not show any causal nexus between her
termination and her race. The Court agrees with Defendants that the fact that Plaintiff admitted to
making untruthful statements during her Internal Affairs interviews undermines her argument that
it was her race, rather than her dishonesty, that led to her being fired.
In addition to the Court’s finding that Plaintiff was unqualified for the role at the time of
her termination, Plaintiff also failed to present any circumstantial evidence of racial discrimination
or show that similarly situated individuals outside of her protected class were treated more
favorably. Thus, the Court finds no genuine issue of material fact that Plaintiff has failed to
establish a prima facie case. Because Plaintiff has not established a prima facie case of

discrimination, Defendant is entitled to summary judgment on Plaintiff’s Title VII and PHRA
claims.
2. PHRA Aiding and Abetting Claim Against Former Chief Nestel
Plaintiff also alleges in her complaint that “Chief Nestel aided and abetted in SEPTA’s
racial discriminatory actions against Plaintiff.” (ECF No. 1 ¶ 41.) “[T]he PHRA makes it unlawful
for ‘any person . . . to aid, abet, incite, compel or coerce the doing of any act declared by this
section to be an unlawful discriminatory practice.’” Bernhard v. Brown & Brown of Lehigh Valley,
Inc., 720 F. Supp. 2d 694, 705 (E.D. Pa. 2010) (citing 43 Pa. Con. Stat. § 955(e)). However,
“individual defendants cannot be held liable for violations of Section 955(e) if there is no primary
violation of the PHRA.” Sampson v. Methacton Sch. Dist., 88 F. Supp. 3d 422, 446 (E.D. Pa.
2015). Because the Court has concluded that summary judgment shall be granted for Defendants
on the PHRA claim, it must follow that Plaintiff’s aiding and abetting claim against Chief Nestel
fails as well, and summary judgment is granted in favor of Chief Nestel.

C. Section 1983 Equal Protection Claim
Plaintiff asserts a § 1983 claim for violations of her Fourteenth Amendment rights and of
§ 1981 of the Civil Rights Act. (ECF No. 1 ¶¶ 43-54.) Plaintiff brings these claims against SEPTA
and against Chief Nestel in his official capacity (Id.) In order to state a claim under § 1983, “a
plaintiff must allege the violation of a right secured by the Constitution and/or laws of the United
States, and must show that the alleged deprivation was committed by a person acting under color
of state law.” Berkery v. Wissahickon Sch. Bd., 99 F. Supp. 3d 563, 569 (E.D. Pa.), aff'd sub nom.
Berkery v. Wissahickon Sch. Dist. Bd. of Directors, 628 F. App'x 109 (3d Cir. 2015). “Section
1983 does not provide substantive rights, but instead, ‘provides a remedy for the deprivations of
rights established elsewhere in the Constitution or federal laws’ . . . . Thus, to establish a § 1983

violation, Plaintiff must allege facts sufficient to establish that Defendants, acting under color of
state law, deprived Plaintiff of a right secured by the Constitution or by the laws of the United
States.” Id. (internal citations omitted).
1. § 1983 Equal Protection Claims and § 1981 Claims against SEPTA and
Chief Nestel

In order to bring a § 1983 Equal Protection claim, a plaintiff must prove “the existence of
purposeful discrimination” Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)
(citing Batson v. Kentucky, 476 U.S. 79, 93 (1986)). Plaintiff must show “that the defendant, acting
under color of state law, treated the plaintiff differently from other individuals similarly situated,
and ‘the different treatment was improperly motivated by discrimination.’” Alers v. City of
Philadelphia, 919 F. Supp. 2d 528, 556 (E.D. Pa. 2013) (quoting Zappan v. Pa. Bd. of Prob. &
Parole, 152 Fed.Appx. 211, 219 (3d Cir.2005).
In the absence of direct evidence of discrimination, § 1983 discrimination claims are
analyzed under the McDonnell Douglas burden shifting framework. Alers, 919 F. Supp. at 556.

Employment discrimination claims under § 1981 are identical to Title VII employment
discrimination claims. Id. (citing Mieczkowski v. York City Sch. Dist., 414 Fed.Appx. 441, 445 n.
2 (3d Cir.2011)). While § 1981 provides Plaintiff her rights, § 1983 is the vehicle for Plaintiff to
seek damages to remedy alleged violations of §1981. McGovern v. City of Philadelphia, 554 F.3d
114, 116 (3d Cir. 2009).
In support of her § 1983 and § 1981 discrimination claims, Plaintiff relies on the same set
of facts she used to support her Title VII and PHRA claims. (See generally ECF No. 1.) As the
Court explained in detail above, Plaintiff has failed to establish a prima facie case of racial
discrimination under Title VII and the PHRA. See supra, Section III.B.(1)(a-b). The Court found
that Plaintiff failed to show that she was treated differently from other similarly situated

individuals, or provide other circumstantial evidence that could give rise to an inference of
intentional discrimination. Based on this same reasoning, the Court finds that Plaintiff has failed
to prove a genuine issue of material fact as to her § 1983 discrimination claims and her § 1981
claims. Summary judgment is granted in favor of Defendants as to Counts III and IV.
Although this is the end of the inquiry, the Court will speak briefly on the issue of Monell
liability.
2. SEPTA’s Policy or Custom of Racial Discrimination
It is undisputed that SEPTA is treated as a municipality for purposes of § 1983 claims.
Brown v. SEPTA, 539 F. App'x 25, 27 (3d Cir. 2013). The Supreme Court held in Monell that to
hold a municipality liable under § 1983, a plaintiff must show a policy or custom that caused her
injury. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978). In order to prove
liability for an equal protection violation against a municipality under § 1983, a Plaintiff must: 1)
identify a policy or custom that deprived her of a federally protected right; 2) “demonstrate that,

through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged”;
and 3) show “a direct causal link between the municipal action and the deprivation of federal
rights.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original).
Nowhere in her complaint does Plaintiff identify a SEPTA policy or custom of racial
discrimination. Despite Defendants addressing this lack of a supposed policy or custom in their
Motion for Summary Judgment, in her Opposition Brief Plaintiff again fails to identify such a
policy or custom. (ECF No. 32-1 at 32.)
“To establish a Monell claim against a municipality, “[a] plaintiff must identify the
challenged policy, attribute it to the [municipality] itself, and show a causal link between execution
of the policy and the injury suffered.” Kocher v. Larksville Borough, 926 F. Supp. 2d 579, 602

(M.D. Pa.), aff'd, 548 F. App'x 813 (3d Cir. 2013) (citing Losch v. Borough of Parkesburg, 736
F.2d 903, 910 (3d Cir.1984)) (emphasis added). Because Plaintiff has failed to identify the policy
or custom of discrimination she alleges exists, Defendants argue that she has abandoned her § 1983
claims. (ECF No. 44 at 6-7.) Whether Plaintiff abandoned her claims or simply failed to establish
them, the outcome is the same. Plaintiff has not identified any policy or custom of racial
discrimination by SEPTA or by Chief Nestel.
D. Whether Former Chief Nestel is Entitled to Qualified Immunity
Because the Court has granted summary judgment for Defendants on Plaintiff’s equal
protection claims, it need not reach the question of whether Chief Nestel is entitled to Qualified
Immunity.

IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ Motion for Summary Judgment
in its entirety. An appropriate Order will follow.
BY THE COURT:
/s/ Hon. Kelley B. Hodge
HODGE, KELLEY B., J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10771326. Public record. Not legal advice.