Anselmo v. City of Phila.

DENISE ANSELMO, Plaintiff, v. CITY OF PHILADELPHIA, ET AL., Defendants.

CIVIL ACTION No. 18-5160

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

January 29, 2021

MEMORANDUM OPINION

Goldberg, J.

Plaintiff Denise Anselmo brings this lawsuit for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq., the Pennsylvania Human Rights Act, 43 Pa. Stat. § 951, et seq., and the Philadelphia Fair Practices Ordinance, Philadelphia Code § 9-1101, et seq. She has sued her employer Defendant Philadelphia Police Department and two Philadelphia Police Officers, Defendants Captain Mark Burgmann and Sergeant Colleen Michvech (collectively, "Defendants"), alleging both retaliation and failure to accommodate arising out of two-year series of events.

Defendants have moved for summary judgment on Plaintiff's entire Complaint. For the following reasons, the Motion will be granted, and judgment will be entered in favor of Defendants on all claims.

I. UNDISPUTED FACTS¹

A. General Background

The following undisputed fact section is detailed and lengthy. Because I am granting judgment in favor of Defendants, I have attempted to lay out all facts upon which Plaintiff relies in opposing summary judgment.

Plaintiff entered the police academy in August 2008, and began working as a police officer at the Philadelphia Police Department ("PPD") on February 9, 2009. (Pl.'s Opp'n Summ. J., Ex. A, Dep. of Denise Anselmo ("Anselmo Dep."), 16:10-14; Defs.' Mot. Summ. J., Ex. A.) On June 5, 2014, Plaintiff transferred to the Special Victims Unit ("SVU"), where she was responsible for investigating sexual crimes and crimes involving physical abuse of adults or children. She handled a large caseload and managed all aspects of the cases. (DSUF ¶¶ 2-5; PR ¶¶ 2-5.)

Defendant Captain Mark Burgmann was assigned as the head of SVU on March 21, 2016. Plaintiff described her relationship with him as "nonexistent." She characterized him as "tough" and "cold," and she claimed that he "made the place feel like a dictatorship." (DSUF ¶¶ 11-16; PR ¶¶ 11-16.)

B. Plaintiff's Discrimination Complaint

While working at SVU, Plaintiff alleged that a supervisor, Lieutenant John Hewitt, treated females unfairly as compared to males. After experiencing a series of incidents with him, Plaintiff was encouraged by another supervisor, Lieutenant Smith, to file an internal complaint pursuant to the Equal Employment Procedure of the PPD.² Her internal complaint was submitted in March 2016, duringCaptain Burgmann's first week at SVU. Captain Burgmann assisted Plaintiff with completing and forwarding the complaint to Internal Affairs. From that point forward, Plaintiff had only five to six other interactions with Captain Burgmann while at SVU. (DSUF ¶¶ 8-10, 17, 19, 21; PR ¶¶ 8-10, 17, 19, 21.)

As a result of her internal complaint, Plaintiff claims she was ostracized and lost friends at work. She was not invited to social gatherings, co-workers would not sit near her, she was excluded when lunch was being ordered, co-workers would "banter" about her and indirectly call her a "rat," and none of her co-workers would investigate her cases with her. Plaintiff did not report any of these allegations but simply began to "withdraw." (DSUF ¶¶ 22-28; PR ¶¶ 22-28.) As she was tired of the bullying, she kept to herself and typically "worked with [her] Air Buds on." (Pl.'s Opp'n Summ. J., Ex. D, Affidavit of Denise Anselmo ("Anselmo Aff.") ¶ 6.)

One of Plaintiff's supervisors, Sergeant Joseph McEntee, testified that Plaintiff had "an attitude," "really didn't get along with her co-workers," and "never volunteered to help other people in their jobs but expected people to help her." (Defs.' Mot. Summ. J., Ex. F, Dep. of Sgt. Joseph McEntee ("McEntee Dep.") 43:20-22; 44:12-19.) Another co-worker, Lt. Myesha Massey, remarked that Plaintiff's squad "didn't particularly care for her" and would say that "she's the worst investigator." (Defs.' Mot. Summ. J., Ex. G, Dep. of Lt. Myesha Massey ("Massey Dep.") 23:3-8.)

C. Plaintiff's Transfer Request

In December 2016, Plaintiff applied for a transfer to the Major Crimes Unit and Background Investigation. Generally, to obtain a transfer, a police officer prepares a Career Development Transfer request form, which is then completed by his/her supervisor and forwarded to the Commanding Officer. The Commanding Officer then completes his/her portion of the form by checking "Highly Recommended," "Recommended," or "Not Recommended" and funnels the form to the Transfer ReviewBoard. The Transfer Review Board interviews the officer and makes a final decision. (DSUF ¶¶ 32-38; PR ¶¶ 32-38.)

According to Sgt. McEntee, Major Crimes is a tough unit to get into because there are "not very many spots." (McEntee Dep. 15:18-22.) Plaintiff claims that her transfer application was delayed or denied by Captain Burgmann in retaliation for her complaint. (Anselmo Dep. 87:15-89:8, 91:5-20.) Specifically, when Plaintiff inquired into her transfer, she heard that Captain Burgmann was holding up her paperwork or just not giving her good reviews. (Id.) Captain Burgmann testified that he approved Plaintiff's transfer to the Major Crimes Unit. (Defs.' Mot. Summ. J., Ex. E, Dep. of Mark Burgmann ("Burgmann Dep.") 17:3-8.)

D. The Onset of Plaintiff's Symptoms and the New Year's Day Parade

Beginning in June 2016, Plaintiff began experiencing tingling in her feet, numbness in her legs, periodic leg muscle weakness, and stinging on the side of her back. (DSUF ¶¶ 43-45; PC ¶ 43-45; Anselmo Dep. 106:13-16.) Although she did not know the cause of her ailments, she worked through the symptoms, and her attendance at work was unaffected. In June 2016, Plaintiff's primary doctor told her to track her symptoms. Plaintiff spoke with Sergeant Vessay at the PPD about her feet "burning," and Sgt. Vessay shared that he had experienced similar symptoms and believed it to be "planter's foot." (DSUF ¶¶ 46-53; PC ¶¶ 46-53.) Captain Burgmann testified that he was not aware that Plaintiff was experiencing or seeing doctors for these problems. (Burgmann Dep. 17:13-23.)

At the end of December, the 2017 Philadelphia New Year's Day parade was approaching. This parade, like other special events, required that all officers work because "parade details" demand additional manpower to patrol the crowd. (DSUF ¶¶ 56-57; PC ¶¶ 56-57.) Around that time, Plaintiff had been experiencing a "delay in [her] right leg and [she] could not feel the ground under [her] feet." (Anselmo Dep. 151:13-17.) She went to her primary doctor, who was still trying to figure out "what was going on," and told him she did not think she could work the parade detail. (Anselmo Dep. 152:6-11.) Her doctor advised her against working the 2017 parade and prepared a note, dated December 30, 2016, stating, "[Plaintiff] was seen today. She may be excused from full duty 1/1/2017. She may return towork 1/3/16 [sic] without restrictions."³ (Pl.'s Sur-reply, Ex. M.) Plaintiff gave the note to one of her supervisors, either Sergeant Vessay or Sergeant Ryan. (Pl.'s Sur-reply, Ex. L; Anselmo Dep. 153:5-154:2.))

On the eve of the parade, Plaintiff emailed Captain Burgmann's aide and told him, "I don't think I'm going to be able to do the detail or whatever, maybe you can get somebody to fill it out. I don't know what's going on. I've been checking on YouTube. I don't know if it's a herniated disc, sciatic nerve, I don't know what it is, but I'm going to go to my other doctor, I have another doctor appointment and I will provide a note." (Anselmo Dep.156:3-12.) Ultimately, Plaintiff used sick leave and did not work the parade detail. (Id. at 154:3-13.)

When Plaintiff returned to work, Captain Burgmann "berated and humiliated" her and ordered her to see the police doctor because her email claimed that she had either a herniated disc or sciatic nerve. (Id. at 154:14-156:15.) Sergeant McEntee gave her an injury form to fill out, and she initially refused, insisting she was not injured at work. (Id. at 156:13-24.) The Captain told her she could not go back to work unless she saw the police doctor because, based on the information he received, he believed Plaintiff may be unable to wear a holster, meaning she was not fit for duty. (Burgmann Dep. 26:20-27:3.) Captain Burgmann further advised her supervising lieutenant that Plaintiff would have to be "carried" on sick leave until she was cleared by the PPD doctor. (Id. at 27:23-28:6.)

Plaintiff filled out the "Accident, Injury & Illness" Report as required and listed her condition as "muscle spasm lower back." (Defs.' Mot. Summ. J., Ex. J.) She then went for an evaluation with the PPD doctor because she understood that it was the only way for her to get back to work. When shearrived, the doctor told her she did not need further evaluation and that a note from any medical doctor would suffice. (Anselmo Dep. 159:4-12; Burgmann Dep. 26:24-27:3.)

Upon her next return to work, Plaintiff testified that she was called into Captain Burgmann's office where the following ensued:

I'm in the office with [the Captain] and Lieutenant Lloyd and he said you called FOP [Fraternal Order of Police]. I said yes. And he said well, you told Dawn [the Captain's aide] that you had a herniated disc. I said I didn't tell Dawn that. Then he presented the e-mail and said yes, you did, it's right here. I said okay, but I also said that I was YouTubing things. I said I can't diagnosis myself, captain. He said you had a herniated disc. That's just what he stuck with.

. . .

And then he kept saying it and then he said well, you took off on a detail and you can't be—I can't have people taking off on a detail. I said but I brought two doctor notes and I thought that would suffice. And then he said you said you had a herniated disc and he just kept sticking with that. It's like no matter what I said to him it didn't matter.

(Anselmo Dep....