ARCHIE v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EYLEEN ARCHIE : CIVIL ACTION

Plaintiff :

: NO. 22-2915

v. :

:

CITY OF PHILADELPHIA, et al. :

Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. JANUARY 16, 2025

MEMORANDUM OPINION

INTRODUCTION

Plaintiff Eyleen Archie (“Plaintiff”) filed this employment action against Defendants City

of Philadelphia (the “City”), Deputy Commissioner Christine M. Coulter (“Defendant Coulter”),

and Captain Maria Ortiz-Rodriguez (“Defendant Ortiz-Rodriguez”) (collectively, “Defendants”),

asserting claims of unlawful discrimination and retaliation in violation of various statutes; to wit:

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Counts I and II

of the Amended Complaint); 42 U.S.C § 1981 (Counts III and IV of the Amended Complaint); 42

U.S.C § 1983 (Counts V and VI of the Amended Complaint); and the Pennsylvania Human

Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 951 et seq. (Count VII of the Amended Complaint).

Specifically, Plaintiff asserts that Defendants discriminated against her based on her race, gender,

color, association with a disabled child, and in retaliation for her prior protected Equal

Employment Opportunity (“EEO”) activities and First Amendment speech made as a public

employee.

Presently, before this Court is the City’s motion for summary judgment1 filed pursuant to

Federal Rule of Civil Procedure (“Rule”) 56. (ECF 50). Plaintiff opposes the motion. (ECF 51).

The issues presented in the City’s motion are fully briefed and are ripe for disposition. For the

reasons set forth herein, the City’s motion for summary judgment is granted as to the following

claims in the Amended Complaint: Plaintiff’s discrimination claims brought under Title VII

(Count I), § 1981 (Count III), § 1983 (Count V), and the PHRA (Count VII), and her retaliation

claims brought under Title VII (Count II), § 1981 (Count IV), and the PHRA (Count VII). The

City’s motion for summary judgment is denied as to Plaintiff’s First Amendment retaliation § 1983

claim at Count VI of the Amended Complaint.

BACKGROUND

When ruling on a motion for summary judgment, a court must consider all record evidence

and the supported relevant facts in the light most favorable to the non-movant — here, Plaintiff.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Justofin v. Metro. Life Ins. Co.,

372 F.3d 517, 521 (3d Cir. 2004), as amended (Aug. 12, 2004). The facts relevant to the

underlying motion are summarized as follows:2

Plaintiff is an African American female police officer employed by the

Philadelphia Police Department (“Police Department”) for seventeen years.

Plaintiff remains employed by the Police Department as a police officer. Plaintiff

is the mother of four children, one of whom suffers from a health condition.

Because of this condition, the child is required to attend medical daycare from 7:00

A.M. to 3:30 P.M.

1 Defendant Ortiz-Rodriguez filed her own motion for summary judgment, (see ECF 52), which this

Court will address in a separate Memorandum Opinion.

As to Deputy Commissioner Christine M. Coulter, Plaintiff contends that there is limited evidence

of Defendant Coulter’s involvement and does not oppose dismissing her from the litigation. (See Pl.’s

Opp., ECF 51-2, at p. 19). Accordingly, all claims against Defendant Coulter are dismissed.

2 These facts are taken from the parties’ briefs, exhibits, and statements of facts. To the extent that

any fact is disputed, such dispute will be noted and, if material and supported by record evidence, will be

construed in Plaintiff’s favor.

On January 5, 2018, upon allegations of child abuse against Plaintiff made

by one of Plaintiff’s children, the City detailed Plaintiff from her assignment of the

Court Liaison Unit to the Delaware Valley Intelligence Center (“DVIC”). This

detail is deemed a temporary and involuntary transfer. As part of this transfer, the

City confiscated Plaintiff’s firearm and placed her on restricted duty.

While the child abuse investigation was pending, Plaintiff reached out to

former police officer Andre Boyer (“Boyer”) to obtain information about who was

handling her child abuse case. Boyer ran a social media page called Serpico News,

purportedly to expose corruption within the Police Department, and agreed to help

Plaintiff. In return, Boyer asked for Plaintiff’s assistance in taking a photograph of

a police officer who Boyer believed was stealing time. Plaintiff did as Boyer asked.

As a result, she was involuntarily detailed on September 27, 2018, this time to the

Auto Pound allegedly as punishment.

When Plaintiff returned from maternity leave sometime in May 2019,

Plaintiff was detailed multiple times before being assigned to the 26th District,

where she continues to work.

Under Police Department policy, police officers placed on restricted duty

and without a firearm are unable to utilize the firing range to complete their annual

certifications but may complete Municipal Police Officer (“MPO”) classes.

Plaintiff did not have her firearm from January 5, 2018, to April 16, 2021. In May

2021, Plaintiff went to the firing range for her firearm qualifications and passed.

The Firearms Training Bureau within the Police Department told Plaintiff to go to

Harrisburg to reobtain her firearm. Plaintiff went to Harrisburg on her own time

but was not able to get her firearm. The Police Department returned her firearm in

March 2022.

In 2021, Plaintiff submitted a hardship request in which she sought

permission to change her work shift schedule from 10:00 P.M. to 6:15 A.M to the

earlier work shift of 6:30 A.M. to 2:30 P.M. to care for her disabled child. Captain

William Fischer, who then served as the captain for the 26th District, approved

Plaintiff’s hardship request and authorized it until June 2022. On December 21,

2021, Defendant Ortiz-Rodriguez, a Hispanic police officer, replaced Captain

Fisher as captain for the 26th District. In February 2022, Defendant Ortiz-

Rodriguez orally advised Plaintiff that she would deny her next hardship request.3

Despite the advanced verbal denial, Plaintiff submitted another hardship

request on February 25, 2022, to Administrative Lieutenant James DeAngelo

(“DeAngelo”), who approved the request and passed it on to Defendant Ortiz-

Rodriguez, who told him to deny it. DeAngelo refused to follow Defendant Ortiz-

Rodriguez’ directive as he believed he did not have the discretion to deny the

hardship request. Plaintiff’s request mysteriously went missing and, coincidentally,

DeAngelo was demoted to line squad. Plaintiff resubmitted her hardship request

3 The parties dispute the reason why Plaintiff’s subsequent hardship request was denied.

on March 15, 2022, which was denied by Defendant Ortiz-Rodriguez. Following

the denial of her hardship request, Plaintiff asserts that she observed Officer Lauren

Alicia, a Hispanic line squad officer in the 26th District, being accommodated so

that she could assist her sick father.4

Sometime later, Defendant Ortiz-Rodriguez issued Plaintiff a 30-Day

Notification of Reassignment, which would have reassigned her to 3-Squad and the

overnight shift. The reassignment was scheduled to go into effect on the first day

following the expiration of Plaintiff’s previously approved hardship request

authorized in 2021.

Just prior to when Plaintiff’s hardship request was to expire, an EEO

complaint was submitted on her behalf,5 which prevented the reassignment from

going into effect. The EEO complaint submitted on behalf of Plaintiff led to an

internal EEO investigation which found that Defendant Ortiz-Rodriguez had denied

Plaintiff’s hardship request without “reasonable justification.” The investigation

also found that the number of Hispanic officers in 5-Squad was “disproportionate”

to the number of African American officers.6

After Defendant Ortiz-Rodriguez denied Plaintiff’s hardship request in

March 2022, Plaintiff was assigned “crappy cars” to drive while on the job.

Defendant Ortiz-Rodriguez told Plaintiff that the nicer cars were reserved for the

captain’s tactical team and for community relations work. However, Plaintiff

testified that the nicer cars went to Hispanic officers.

LEGAL STANDARD

Rule 56 governs summary judgment motion practice. Fed. R. Civ. P. 56. Specifically, this

Rule provides that summary judgment is appropriate “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.” Id. A

fact is “material” if proof of its existence or non-existence might affect the outcome of the

4 It is unclear whether Lauren Alicia had written approval or submitted a hardship request for the

accommodation.

5 It is also unclear from the record who filed the EEO complaint. Lieutenant Brent Conway, the

City’s EEO investigator, testified that either Plaintiff or DeAngelo filed the complaint. However, Plaintiff

denies that she filed the EEO complaint and DeAngelo testified that he filed some type of complaint after

Defendant Ortiz-Rodriguez denied Plaintiff’s hardship request.

6 Notably, the cited record does not provide the ratio of African American officers to Hispanic

officers.

litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. When evaluating a motion under

Rule 56, the court must view the evidence in the light most favorable to the nonmoving party.

Justofin, 372 F.3d at 521.

Pursuant to Rule 56, the movant bears the initial burden of informing the court of the basis

for the motion and identifying those portions of the record that the movant “believes demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). This burden can be met by showing that the nonmoving party has “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case.” Id. at

322. After the movant has met its initial burden, summary judgment is appropriate if the

nonmoving party fails to rebut the movant’s claim by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory answers, or other materials” that show a

genuine issue of material fact or by “showing that the materials cited do not establish the absence

or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A)-(B). The nonmoving party must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

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

party may not rely on “bare assertions, conclusory allegations or suspicions,” Fireman’s Ins. Co.

of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), or rest on the allegations in the

pleadings, Celotex, 477 U.S. at 324. Rather, the nonmoving party must “go beyond the pleadings”

and, either by affidavits, depositions, answers to interrogatories, or admissions on file, “designate

‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324.

DISCUSSION

As noted, Plaintiff asserts that the City violated Title VII, § 1981, § 1983, and the PHRA

by discriminating against her based on her race, gender, color, and association with a disabled

child, and retaliated against her for prior protected EEO activities and First Amendment speech

made as a public employee. The City moves for summary judgment on these claims arguing that

Plaintiff has failed to present evidence sufficient to meet her burden with respect to the prima facie

elements of her claims and/or as to pretext. Each claim will be addressed separately.

Plaintiff’s Discrimination Claims under § 1981

Section 1981(a) provides that:

All persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give

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

security of persons and property as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,

and to no other.

42 U.S.C. § 1981(a).

The City moves for summary judgment on this claim arguing that § 1981 does not provide

a private right of action against state actors. Plaintiff concedes this point. (See Pl.’s Opp., ECF

51-2, at p. 19). Regardless, this Court agrees with the City. See McGovern v. City of Philadelphia,

554 F.3d 114, 120-21 (3d Cir. 2009) (holding that § 1981 does not provide a private cause of action

against a state actor). Accordingly, judgment is entered in favor of the City and against Plaintiff

on her claims of discrimination and retaliation brought under § 1981 at Counts III and IV of

Plaintiff’s Amended Complaint.

Plaintiff’s Discrimination Claims Under Title VII, § 1983, and the PHRA

Plaintiff alleges that the City unlawfully discriminated against her in violation of Title VII,7

§ 1983,8 and the PHRA.9 Claims arising under these statutes are subject to the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Stewart v.

Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997) (“Our application of the [McDonnell

Douglas] framework is applicable to Stewart’s allegation of racial discrimination under 42 U.S.C.

§§ 1981 and 1983.”); Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)

(applying the McDonnell Douglas standard to PHRA claims).

Under the McDonnell Douglas framework, “[t]he complainant . . . must carry the initial

burden under the statute of establishing a prima facie case of . . . discrimination.” 411 U.S. at 802.

To maintain a viable claim under either Title VII, § 1983, and/or the PHRA, a plaintiff must present

evidence to show, inter alia, that the plaintiff: (1) “is a member of a protected class; (2) was

qualified for the position which she held; (3) suffered an adverse employment action which was

(4) taken under circumstances giving rise to an inference of discrimination.” Emerson v. Stern &

Eisenberg, P.C., 2022 WL 10208548, at *4 (E.D. Pa. Oct. 17, 2022). Once a plaintiff establishes

a prima facie case of discrimination, the burden shifts to the defendant “to articulate some

legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas,

7 Title VII, as amended, makes it unlawful to “discriminate 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).

8 Section 1983 provides in part, “Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party . . . .” 42

U.S.C. § 1983.

9 The PHRA prohibits “discrimination against individuals or groups by reason of their race, color,

familial status, religious creed, ancestry, age, sex, national origin, handicap or disability . . . .” 43 Pa Cons.

Stat. § 952(a).

411 U.S. at 802. If the defendant satisfies this step, the burden shifts back to the plaintiff to show

that the legitimate nondiscriminatory reason proffered by the defendant is merely a pretext for

discrimination. Fuentes v. Perskie, 32 F.3d 759, 804-05 (3d Cir. 1994).

Here, the City argues only that Plaintiff has failed to meet the third and fourth prima facie

elements by having failed to present evidence sufficient to show that she suffered an adverse

employment action which was taken under circumstances giving rise to an inference of

discrimination.10 The City also argues that even if this Court finds that Plaintiff suffered an

adverse employment action, the City had legitimate non-discriminatory reasons for taking those

actions and Plaintiff is unable to show that the City’s proffered reasons were merely pretext.

Plaintiff disagrees.

1. Adverse Employment Actions

The United States Court of Appeals for the Third Circuit (the “Third Circuit”) has defined

an “adverse employment action” “as an action by an employer that is ‘serious and tangible enough

to alter an employee’s compensation, terms, conditions, or privileges of employment.’” Storey v.

Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (citation omitted). “Tangible employment

actions are those that create 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.’” Larochelle v. Wilmac Corp., 210 F. Supp. 3d 658, 696 (E.D.

Pa. 2016) (quoting Vance v. Ball State Univ., 570 U.S. 421, 431 (2013)). When an employee’s

salary, reporting requirements, and general duties remain the same, there is typically insufficient

10 Because the City does not move for summary judgment on the first two elements of McDonnell

Douglas to show a prima facie case of discrimination — that Plaintiff is a member of a protected class, and

that Plaintiff was qualified — this Court will presume at this stage that these elements are met for purposes

of Plaintiff’s prima facie discrimination case.

evidence of an adverse employment action. Fiorentini v. William Penn Sch. Dist., 665 F. App’x

229, 234-35 (3d Cir. Dec. 16, 2016).

Here, Plaintiff contends that she suffered the following adverse employment actions: (1)

the denial of her hardship request; (2) the assignment to the worst police vehicles; (3) a demotion,

less desirable transfer, and the removal of responsibilities; and (4) restricted duty and the loss of

her firearm. (See Pl.’s Opp., ECF 51-2, at p. 4). The City disagrees and argues that none of these

purported actions, singularly or in combination, constitute actionable adverse employment actions.

These arguments are addressed in turn.

The Denial of Plaintiff’s Hardship Request

Plaintiff’s hardship request for a change in her hours, if granted, would have changed her

hours to 6:30 A.M. to 2:30 P.M. (March 15, 2022 Hardship Request, ECF 51-15, at p. 2). This

hardship request is akin to a shift change, which generally is not deemed an adverse employment

action. See Friel v. Mnuchin, 474 F. Supp. 3d 673, 686 (E.D. Pa. 2020), aff’d, 2021 WL 6124314

(3d Cir. Dec. 28, 2021) (finding that shift change requests were not adverse employment actions

because they did not affect the terms and conditions of employment); Washington v. SEPTA, 2021

WL 2649146, at *21 (E.D. Pa. June 28, 2021) (same). Plaintiff has not contended that the terms

and conditions of her employment changed at any time despite the denial of her hardship requests.

As such, the denial of Plaintiff’s shift change request is not an actionable adverse employment

action.

Nonetheless, Plaintiff cites to Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999)

in support of her contention that a denial of a hardship request is an adverse employment action.

Plaintiff’s reliance, however, is misplaced. The Third Circuit’s decision in Taylor is inapposite as

it involved a failure to authorize a transfer request to a different position as opposed to a change

in shift request, which is what Plaintiff had requested. Under the circumstances present herein,

Plaintiff has not shown that the denial of her hardship request (a shift change) is an adverse

employment action. Accordingly, the City’s motion is granted with respect to all claims premised

on the denial of Plaintiff’s hardship request.

Assignment of the Worst Vehicles

Plaintiff also contends that her assignment to the worst police vehicles in the pool

constitutes an adverse employment action. Plaintiff baldly asserts that “[a]n assignment to the

worst patrol vehicles can be an adverse employment action since it limits the ability to perform

the job and can prevent an individual from advancing in his or her career.” (Pl.’s Opp., ECF 51-

2, at p. 7) (emphasis added). In support, Plaintiff cites to King v. City of New Kensington, 2008

WL 4492503 (W.D. Pa. Sept. 30, 2008). In King, the court found that an assignment of the worst

police vehicles “might be an adverse employment action, since it might limit [the plaintiff’s]

ability to perform her job and prevent her from advancing in her law enforcement career.” Id. at

*11 (emphasis added). However, numerous courts have found that assignment to the worst

vehicles is not an adverse employment action. See Virostek v. Liberty Twp. Police Dep’t/Trustees,

14 F. App’x 493, 504 (6th Cir. 2001); Clark v. City of Alexandria, 2022 WL 18144872, at *6

(W.D. La. Dec. 9, 2022), report and recommendation adopted, 2023 WL 122971 (W.D. La. Jan.

6, 2023); Jones v. City of Jackson, 335 F. Supp. 2d 865, 870 (W.D. Tenn. 2003); Sierra v. City of

Albuquerque, 2008 WL 11412098, at *8 (D.N.M. Sept. 11, 2008). In Jones, the plaintiff failed to

provide evidence of how being denied a quality patrol car created a “materially adverse change in

the terms or conditions of plaintiff’s employment . . . .” Jones, 335 F. Supp. 2d at 870. Likewise,

Plaintiff fails to provide evidence of the same. As such, this Court finds these decisions more

persuasive and incorporates their reasoning herein.

Accordingly, this Court finds in this case that Plaintiff’s assignment to the worst vehicles

does not constitute an adverse employment action. Consequently, because Plaintiff has failed to

meet her burden of showing that the assignment of her vehicles was an adverse employment action,

the City’s motion for summary judgment is granted with respect to this claim.

Demotion

Plaintiff next contends that her transfer to a different squad (the “3-Squad”) constituted an

adverse action in that it was a demotion to a less desirable position, which led to the removal of

her responsibilities. However, Plaintiff conceded during her deposition that the transfer never

actually took effect. Under these circumstances, Plaintiff cannot show that she suffered an adverse

employment action on account of the purported transfer.

After Plaintiff submitted her hardship request, Plaintiff contends that Defendant Ortiz-

Rodriguez began the process of reassigning her from 5-Squad to the “last out” or overnight shift

in 3-Squad. The change was to go into effect on July 1, 2022. (See Notification of Reassignment,

ECF 51-17; Archie Dep. Tr., ECF 51-5, at 235:19-24). Plaintiff concedes, however, that the

reassignment never took effect:

Q. Okay. Up through, 1ike, current day – I realize you’re out on leave right

now. But up through current day, you’ve always worked 7:00 to 3:00?

A. Yes. That’s because my hardship didn’t expire yet, so I was still working

7:00 to 3:00. And then once my hardship expired, I still stayed on 7:00 to 3:00.

Because someone filed an EEOC complaint on my behalf. So once that case was

open, I still – my shift was not allowed to be changed. Because if that did not

happen, I would have had to went to last out.

…

Q. And what does last out mean?

A. It’s the overnight shift working 12:00 a.m. to 8:00 a.m.

Q. But I believe you testified that you didn’t end up working that shift; is that

right?

A. I did not end up working that shift.

(Archie Dep. Tr., ECF 51-5, at 170:5-16, 240:24 – 241:4) (emphasis added). Defendant Ortiz-

Rodriguez confirmed the same:

Q. But you or nobody else ever made her regular shift 3-Squad after the EEO

complaint?

A. After the EEO complaint? I assigned her to 3-Squad, she never worked it.

(Ortiz-Rodriguez Dep. Tr., ECF 51-11, at 146:15-18) (emphasis added).

Considering these testimonies, particularly Plaintiff’s concession, it is apparent that the

demotion, less desirable transfer, and the removal of responsibilities never occurred. And since

they were never effectuated, these claimed discrimination actions do not fall within the definition

of an adverse employment action. Accordingly, the City’s motion for summary judgment is

granted with respect to Plaintiff’s discrimination claims premised on these non-occurring adverse

employment actions.

Restricted Duty and Loss of Firearm

As to Plaintiff’s restricted duty and the loss of her firearm contentions, this Court finds that

these contentions are adverse employment actions. See Brooks v. City of Philadelphia, 2015 WL

505405, at *7 (E.D. Pa. Feb. 6, 2015) (“Plaintiff’s detail out of the specialized and respected NSF

unit to administrative desk duty, and the required relinquishment of her weapon, constitutes a

significant change in her employment status that rises to the level of an adverse employment

action.”) (citing Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005). The City

acknowledges that these events occurred due to overlapping investigations into Plaintiff but does

not offer legal support to dispute that these actions were adverse employment actions. (See City’s

Mot., ECF 50, at p. 15) (“Plaintiff was investigated twice for child abuse . . . and once for

corruption. As Lt. Hunter testified, each of these overlapping investigations warranted the removal

of Plaintiff’s weapon until the investigation could be completed, with the latter investigation

resulting in her suspension”). Accordingly, this Court finds that Plaintiff’s placement on restricted

duty and the loss of her firearm constitute adverse employment actions. As such, Plaintiff’s

restricted duty and the loss of firearm claim proceeds to the next step of the analysis, that is,

Plaintiff must show that her placement on restricted duty and the loss of her firearm occurred under

circumstances from which there is an inference of discrimination.

2. Inference of Discrimination

To support an inference of discrimination, a plaintiff generally must present comparator

evidence — that is, “evidence that [the employer] treated ‘similarly situated’ individuals not within

plaintiff’s protected class more favorably than it treated plaintiff.” Darby v. Temple Univ., 216 F.

Supp. 3d 535, 542 (E.D. Pa. 2016) (quoting Wilcher v. Postmaster Gen., 441 F. App’x 879, 881

(3d Cir. 2011)). In the absence of comparator evidence, the plaintiff may present “evidence of

similar discrimination of other employees, or direct evidence of discrimination from statements or

actions by [her] supervisors suggesting animus.” Golod v. Bank of Am. Corp., 403 F. App’x 699,

702 n.2 (3d Cir. 2010). When using comparator evidence, “[t]he plaintiff has the burden of

demonstrating that similarly situated persons were treated differently.” Simpson Kay Jewelers,

Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998). For a person to be “similarly situated,”

the person must be similar in “all relevant respects.” Ospatnik v. Norfolk S. Corp., 335 F. App’x

220, 223 (3d Cir. 2009). In assessing similarly situated comparators, relevant factors include “the

employees’ job responsibilities, the supervisors and decision-makers, [and] the nature of the

misconduct . . . .” Wilcher, 441 F. App’x at 882. The nature of the instances of misconduct must

be of “comparable seriousness.” Opsatnik, 335 F. App’x at 223 (internal citations omitted).

However, “summary judgment is appropriate where there is no evidence from which a jury could

conclude the parties were similarly situated.” Abdul-Latif v. Cnty. of Lancaster, 990 F. Supp. 2d

517, 526 (E.D. Pa. 2014).

Here, Plaintiff offers no comparator evidence to support her claim of discrimination. In

the absence of comparator evidence, Plaintiff attempts to meet her burden with respect to an

inference of discrimination by merely showing that the City’s explanation for the unusually long

time for her to receive her firearm lacks credibility. In support of this approach, Plaintiff cites to

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000) to argue that exposing the lack of

credibility of a defendant’s reasons is enough to show an inference of discrimination. However,

Plaintiff’s proffered interpretation is misguided. In Reeves, unlike here, it was “undisputed” that

the plaintiff had met his prima facie burden. Id. at 142. At issue, in the context of a Rule 50

motion,11 was whether the plaintiff had presented sufficient evidence of pretext to permit the trier

of fact to disbelieve the employer’s proffered non-discriminatory reason(s) for the termination. Id.

at 143. Here, Plaintiff has not yet satisfied her prima facie burden. Thus, her reliance on the

Reeves Court’s analysis of pretext is inapposite.

As noted, a plaintiff may present “evidence of similar discrimination of other employees,

or direct evidence of discrimination from statements or actions by [her] supervisors suggesting

animus” in the absence of comparator evidence. Golod, 403 F. App’x at 702 n.2. Plaintiff,

however, does not offer any such evidence. As such, Plaintiff fails to meet her prima facie burden

of discrimination with respect to the restricted duty and loss of her firearm discrimination claims.

11 Rule 50 governs judgment as a matter of law in a jury trial; related motion for new trial; and

conditional rulings.

Since she has not met her burden, summary judgment is entered in favor of the City and against

Plaintiff on her discrimination claims brought under Title VII, § 1983, and the PHRA.

Plaintiff’s Retaliation Claims Under Title VII and the PHRA

Plaintiff asserts claims for retaliation premised on her allegations that the City took several

adverse employment actions against her based on her complaints of discrimination and submission

of hardship requests to change her shift hours. The City moves for summary judgment on these

retaliation claims on the basis that Plaintiff has failed to present evidence sufficient to show at this

stage that the City’s actions were adverse employment actions and/or the requisite causal

connection between any protected activity (complaints of discrimination and the hardship requests)

and the alleged adverse employment actions. This Court agrees with the City.

Like her discrimination claims, Plaintiff’s retaliation claims are subject to the McDonnell

Douglas burden-shifting analysis. Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006).12 To

establish a prima facie case of retaliation, Plaintiff must show that: (1) she engaged in activity

protected by Title VII; (2) the City took a materially adverse employment action against her; and

(3) a causal connection exists between her participation in the protected activity and the City’s

adverse action. Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 320 (3d Cir.

2008). Once a plaintiff presents evidence sufficient to meet each of the prima facie elements, the

burden shifts to the employer to articulate a non-retaliatory reason for its actions. See id. The

burden then shifts back to the plaintiff to show that the employer’s offered reason is pretextual and

that retaliation was the real reason for the adverse employment action. See id. To fall within Title

VII’s protection, the protected activity must relate to a discriminatory employment practice

12 Plaintiff’s retaliation claims under the PHRA are also subject to the McDonnell Douglas burden-

shifting analysis. See Boykins v. SEPTA, 722 F. App’x 148, 156 (3d Cir. 2018).

deemed unlawful by Title VII. See Curay-Cramer v. Ursuline Acad. of Wilmington, Inc., 450 F.3d

130, 135 (3d Cir. 2006).

As noted, Title VII prohibits employment discrimination based on “race, color, sex,

religion, or national origin,” 42 U.S.C. § 2000e-2, and the PHRA prohibits “discrimination against

individuals or groups by reason of their race, color, familial status, religious creed, ancestry, age,

sex, national origin, handicap or disability . . . .” 43 Pa. Cons. Stat. § 952(a). “A general complaint

of unfair treatment does not translate into a charge of illegal [] discrimination.” Daniels v. Sch.

Dist. of Phila., 982 F. Supp. 2d 462, 485 (E.D. Pa. 2013) (quoting Barber v. CSX Distrib. Servs.,

68 F.3d 694, 702 (3d Cir. 1995)). To qualify as a protected activity, the employee’s complaint

must identify the employer’s unlawful practice by either explicitly or implicitly identifying the

protected characteristic. Barber, 68 F.3d at 702.

A causal connection between the protected activity and the adverse action may be inferred

from: (1) an unusually suggestive temporal proximity between the complaints of discrimination

and the adverse employment action; (2) an intervening pattern of antagonism following the

protected conduct; or (3) the proffered evidence examined as a whole. Kachmar v. SunGuard

Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997). “Temporal proximity alone suffices only when

it is ‘unusually suggestive of retaliatory motive.’” Simoni v. Diamond, 835 F. App’x 660, 663 (3d

Cir. 2020) (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).

1. Adverse Employment Actions

For retaliation claims, “the standard required to show an ‘adverse employment action’

differs from the standard used for claims of discrimination.” Davis v. City of Newark, 285 F.

App’x 899, 904 (3d Cir. 2008) (citing Moore, 461 F.3d at 341). In the retaliation context, an

adverse employment action is one that “might have dissuaded a reasonable worker from making

or supporting a charge of discrimination.” Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181,

195 (3d Cir. 2015) (quoting Burlington, 548 U.S. at 68). Adverse employment actions may include

“undesirable reassignment, demotion, or discharge.” Alers v. City of Phila., 919 F.Supp.2d 528,

547 (E.D. Pa. 2013).

In the operative complaint, Plaintiff alleges the same factual allegations set forth in her

discrimination claims — that the City retaliated against her and took the following adverse

employment actions against her: (1) demotion, less desirable transfer, and the removal of her

responsibilities; (2) assignment to the worst police vehicles; and (3) retaliatory harassment, which

also includes the assignment to the worst vehicles.13 For the reasons discussed below, none of the

foregoing alleged actions constitutes adverse employment actions supportive of Plaintiff’s

retaliation claims.

For the same reasons set forth above with respect to Plaintiff’s disparate treatment claims,

this Court finds that Plaintiff’s retaliation claims premised on the demotion, less desirable transfer,

and removal of responsibilities are not adverse employment actions because the transfer on which

they are based never took effect. Accordingly, the City’s motion for summary judgment is granted

with respect to Plaintiff’s retaliation claims premised on these non-occurring actions.

13 Plaintiff’s response to the City’s Motion for Summary Judgment also includes claims of retaliatory

denial of overtime and retaliatory harassment in the form of mistreatment from peers, which Plaintiff claims

manifested in the form of being excluded from activities such as a photoshoot, and a meeting between

Plaintiff and Defendant Ortiz-Rodriguez on October 20, 2022, where Defendant Ortiz-Rodriguez allegedly

humiliated and embarrassed Plaintiff in front of her peers. (See Pl.’s Opp., ECF 51-2, at pp. 13-14).

Notably, these claims are not in Plaintiff’s Amended Complaint. Accordingly, these alleged new claims

are improper, and this Court will not entertain them. See Bell v. City of Philadelphia, 275 F. App’x 157,

160 (3d Cir. 2008) (“A plaintiff ‘may not amend his complaint through arguments in his brief in opposition

to a motion for summary judgment.’”) (citations omitted). In Bell, the court declined to address the merits

of plaintiff’s right to petition component of his First Amendment retaliation claim, where his complaint

only mentioned the claim premised on speech and association components. Id.

As to Plaintiff’s contention of discriminatory retaliation based on the assignment to the

worst police vehicles, this Court also finds that this contention is not an adverse employment action

for the same reasons mentioned above with respect to Plaintiff’s discrimination claim. See Sierra,

2008 WL 11412098, at *8 (finding that assignment of newer police vehicles to less senior officers

did not constitute an adverse employment action for a retaliation claim because it was a mere

inconvenience and was not “materially adverse to plaintiff’s job status”). Though Plaintiff baldly

asserts that an assignment to the worst police vehicle would dissuade an officer from taking

protected activity, Plaintiff does not provide further factual or legal support for this argument.14

Accordingly, summary judgment is entered in favor of the City on Plaintiff’s retaliation claims

brought under Title VII and the PHRA.

Plaintiff’s Retaliation Claim under § 1983

Plaintiff also asserts a § 1983 claim for retaliation premised on the City’s alleged retaliatory

actions in response to Plaintiff’s exercise of First Amendment rights. Specifically, Plaintiff

contends she was punished and accused of insubordination for taking a photograph of another

police officer, purportedly to expose corruption showing that the other officer was stealing time

while on the job. To establish a First Amendment retaliation claim, a public employee must show

“(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.” Hill v. Borough of Kutztown,

455 F.3d 225, 241 (3d Cir. 2006). The First Amendment “protects a public employee’s right, in

certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.

Ceballos, 547 U.S. 410, 417 (2006). However, “[s]peech by government employees receives less

14 Plaintiff again cites to King, 2008 WL 4492503, to support her argument that assignment to the

worst police vehicles is an adverse employment action for a retaliation claim. As noted, King is inapposite

because the plaintiff in King did not premise a retaliation claim based on an assignment to the worst

vehicles.

protection than speech by members of the public.” Amalgamated Transit Union Loc. 85 v. Port

Auth. of Allegheny Cnty., 39 F.4th 95, 103 (3d Cir. 2022). Notwithstanding, “public employees

do not surrender all of their First Amendment rights merely because of their employment status.”

Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465 (3d Cir. 2015), as amended (Oct. 25, 2019).

Notably, the act of taking a photograph is protected by the First Amendment. See Fields v. City of

Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017) (“The First Amendment protects actual photos,

videos, and recordings . . . .”); see also Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d

144, 158 (3d Cir. 2002) (“‘Speech’ is not construed literally, or even limited to the use of words.

Constitutional protection is afforded not only to speaking and writing, but also to some nonverbal

acts of communication, viz., ‘expressive conduct’ (or ‘symbolic speech’).”); Gilles v. Davis, 427

F.3d 197, 212 (3d Cir. 2005) (“More generally, photography or videography that has a

communicative or expressive purpose enjoys some First Amendment protection.”).

1. Plaintiff’s Speech is Protected by the First Amendment

For a public employee’s speech to be protected under the First Amendment, the public

employee must show that (a) in making the speech she spoke as a private citizen, and (b) the speech

involved a matter of public concern. Id. However, public employees who make statements

pursuant to their official duties do not speak as citizens for First Amendment purposes. Javitz v.

Cnty. of Luzerne, 940 F.3d 858, 864 (3d Cir. 2019). That is, a public employee that does not speak

pursuant to official duties instead speaks as a private citizen. See Dougherty v. Sch. Dist. of

Philadelphia, 772 F.3d 979, 988 (3d Cir. 2014) (finding that plaintiff, who was an administrator

for the school district, spoke as a private citizen when he disclosed alleged misconduct, which was

outside of his routine job responsibilities). In addition, the “content of the speech may involve a

matter of public concern if it attempts ‘to bring to light actual or potential wrongdoing or breach

of public trust on the part of government officials.’” Baldassare v. State of N.J., 250 F.3d 188,

195 (3d Cir. 2001) (quoting Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993)).

Here, Boyer asked Plaintiff to (and did) photograph another police officer, who was

allegedly stealing official time, to expose corruption. The City argues that the speech did not

involve a matter of public concern because Plaintiff took the photograph in exchange for

information on her investigation in quid pro quo fashion.15 Plaintiff argues that there was no

official police business being conducted at the time and no Police Department rule exists to prevent

officers from photographing each other.

This Court finds that Plaintiff’s act of photographing a fellow police officer, at the request

of someone not part of the Police Department, was an action taken by a private citizen. Plaintiff’s

“speech” in this instance was not made pursuant to her official duties because taking photographs

of other police officers is generally not part of the responsibilities of a police officer.16 In addition,

the Third Circuit has held that “recording police activity in public falls squarely within the First

Amendment right of access to information.” Fields, 862 F.3d at 358.

Plaintiff also asserts that she took the photograph to expose the corruption of another police

officer. In response, the City argues that Plaintiff merely took the photograph to get more

information about her own investigation in quid pro quo fashion. The Third Circuit has held that

“[d]isclosing corruption, fraud and illegality in a government agency is a matter of significant

public concern.” Baldassare, 250 F.3d at 196 (quoting Feldman v. Philadelphia Hous. Auth., 43

F.3d 823, 829 (3d Cir. 1994). In Baldassare, the plaintiff (an investigator with the Bergen County

15 Notably, the City provides no legal support for this argument.

16 Plaintiff was assigned to the DVIC during the photograph incident. She testified that her only

responsibility at the time was checking officers in and out at the security booth. (Archie Dep. Tr., ECF 51-

5, at 68:20 – 70:13).

Prosecutor's Office) investigated allegations regarding criminal activity by two police officers and,

as a result, faced retaliation. Baldassare, 250 F.3d at 193. The Third Circuit noted, “Baldassare’s

motive for performing the investigation is immaterial” and found that his “conduct and expression

in the internal investigation of employees . . . constituted a matter of public concern.” Id. at 197.

Similarly, even if part of the reason that Plaintiff took the photograph was for her own benefit, it

does not diminish the fact that the photograph could have also been used to expose corruption.

Accordingly, Plaintiff’s conduct is protected by the First Amendment.

2. The Protected Conduct was a Substantial Factor in the Alleged Retaliatory Action

Whether the protected conduct was a substantial factor in the alleged retaliatory action is a

question for the fact finder. Baldassare, 250 F.3d at 195. Here, Plaintiff argues that the City

retaliated against her by suspending her and accusing her of insubordination for taking the

photograph. The City rebuts that the suspension was tied to her race, gender, color, or affiliation

with a disabled person but concedes that a suspension occurred because of the incident. (See City’s

Mot., ECF 50, at p. 24). Clearly, at this stage of the litigation, Plaintiff has introduced sufficient

evidence to show that a genuine dispute exists on this claim and, thus, survives summary judgment.

As such, it is for the jury to ultimately resolve the question at hand, since “only genuine questions

of fact should be determined by the jury” for this element of the claim. Hill v. City of Scranton,

411 F.3d 118, 127 (3d Cir. 2005); see also Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d

Cir.1995) (noting District Court concluded that plaintiff made sufficient showing that speech was

substantial factor motivating termination to submit question to the jury). Accordingly, the City’s

motion for summary judgment is denied with respect to Plaintiff’s § 1983 claim for First

Amendment retaliation.17

CONCLUSION

For the foregoing reasons, this Court finds that Plaintiff has failed to meet her summary

judgment burden with respect to her discrimination claims brought under Title VII (Count I), §

1981 (Count III), § 1983 (Count V), and the PHRA (Count VII), and retaliation claims brought

under Title VII (Count II), § 1981 (Count IV), and PHRA (Count VII). Accordingly, Defendants’

motion for summary judgment is granted as to these claims. Defendants’ motion is denied with

respect to Plaintiff’s § 1983 claim for retaliation premised on the exercise of her First Amendment

rights. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, J.

17 After a plaintiff meets the two elements required to establish a § 1983 claim for retaliation for First

Amendment conduct, the burden shifts to the defendant to show that its interests in promoting workplace

efficiency and avoiding disruption outweigh the public employee’s interest in the activity in question. See

Fenico v. City of Philadelphia, 70 F.4th 151, 162 (3d Cir. 2023) (citing Pickering v. Bd. of Ed. of Twp. High

Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568 (1968). The employer “must still establish likely

disruption through record support and courts have long required more than ‘unadorned speculation as to

the impact of speech.’” Fenico, 70 F.4th at 166 (citation omitted); see also Watters, 55 F.3d at 897-98

(citing lack of evidence to support employer’s assertion that destruction of particular relationships would

disrupt office operations in reversing judgment as a matter of law for employer). Here, the City makes no

argument about their interest in promoting workplace efficiency and avoiding workplace disruption. As

such, Plaintiff’s § 1983 claim for retaliation survives summary judgment.