Brennan v. City of Phila.

CHARLES BRENNAN, Plaintiff, v. CITY OF PHILADELPHIA, MAYOR JAMES F. KENNEY,CHRISTINE DERENICK-LOPEZ, and JANE SLUSSER, Defendants.

CIVIL ACTION NO. 18-1417

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 30, 2020

DuBois, J.

MEMORANDUM

I. INTRODUCTION

This is a retaliation case arising from the termination of plaintiff, Charles Brennan, from his position as Chief Information Officer ("CIO") for the City of Philadelphia ("the City"). Plaintiff alleges that defendants, the City, Mayor James F. Kenney, and two senior City officials—Christine Derenick-Lopez and Jane Slusser—retaliated against him for voicing concerns over multiple purportedly unlawful and wasteful City practices, including racially discriminatory hiring and the violation of public contract award requirements. Plaintiff asserts six causes of action of retaliation under federal, state, and local law. Presently before the Court is defendants' motion for summary judgment. For the reasons that follow, the motion is granted.

II. BACKGROUND¹

On January 11, 2016, plaintiff was hired as the City's CIO, responsible for overseeing the City Office of Innovation and Technology ("OIT"). Defs.' Statement Undisputed Material Facts("Defs.' SUMF") ¶ 4. Between January 2016 and December 2016, plaintiff reported to, and was supervised by, Rebecca Rhynhart, the City's Chief Administrative Officer ("CAO"). Id. ¶ 7. Rhynhart resigned in December 2016, after which she was replaced by defendant Christine Derenick-Lopez. Id. ¶ 9. Over the next two years, plaintiff reported several concerns to City officials regarding: (1) City hiring practices that he believed were racially discriminatory; (2) the City's failure to competitively bid a public contract for police body cameras; (3) enforcement of a contract with Comcast, a City vendor; and (4) requests by Derenick-Lopez that he attend sensitivity training, which he believed were discriminatory. Plaintiff asserts that his termination on January 12, 2018, was retaliation for raising these various concerns to City officials. Id. ¶ 101.

A. The City's Diversity Initiative and Allegedly Discriminatory Hiring Practices

First, plaintiff alleges retaliation for complaints he raised about purported racially discriminatory hiring practices by the City. Following the election of Mayor Kenney in November of 2015, the City began planning an employment initiative to diversify the municipal workforce (the "diversity initiative"). Id. ¶ 11. To implement this initiative, the City's Chief Diversity Officer, Nolan Atkinson, met with City department heads, including plaintiff, on a quarterly basis to review the racial composition of their respective departments. Id. ¶ 19. According to plaintiff, during his first meeting of 2017 with Atkinson, in or around early May of 2017, Atkinson told plaintiff that the "White numbers" for OIT were "moving in the wrong direction," and that OIT had "too many Whites" and "too many Asians." Id. ¶ 24; Defs.' Mot. Summ. J. ("Defs.' Mot.") Ex. B ("Brennan Dep.") 59:1-7.² Plaintiff testified that, in response, he disputed Atkinson's demographic data and told Atkinson that given the shortage ofapplications by Hispanic and African American candidates, "the only way I could get to his number was [to] discriminate against Whites and Asians . . . . [W]e can't do that, it's illegal to do that." Pl.'s Counterstatement Material Facts ("Pl.'s CMF") ¶ 66; Brennan Dep. 60:1-17.

According to plaintiff, approximately one week later, he first complained to Derenick-Lopez that Atkinson's comments and instructions to increase OIT diversity were "offensive and discriminatory" and told her that "we couldn't do them." Defs.' SUMF ¶ 28; Brennan Dep. 65:19-24. Derenick-Lopez admitted that the leaders of two other City departments raised similar concerns to her about feeling "pressured to hire people of certain races" by Atkinson. Defs.' SUMF ¶ 30; Defs.' Mot. Ex. D ("Derenick-Lopez Dep.") 129:5-10. Derenick-Lopez relayed these complaints to defendant Jane Slusser, the Mayor's Chief of Staff. Defs.' SUMF ¶ 31.

Plaintiff testified that he complained to Derenick-Lopez "multiple times" about Atkinson and "what [he] felt was undue pressure to discriminate against people" through the summer and fall of 2017, though he did not provide specific dates. Pl.'s CMF ¶ 70; Brennan Dep. 69:24-70:3. Derenick-Lopez testified she did not recall that plaintiff raised any additional complaints about race and hiring. Derenick-Lopez Dep. 133:2-134:8. Plaintiff concedes that Mayor Kenney had no knowledge of these complaints about Atkinson and the implementation of the diversity initiative. Pl.'s Resp. Defs.' SUMF ¶ 98.

B. The Police Body Camera Bidding Process

Second, plaintiff alleges that defendants terminated his employment in retaliation for concerns he voiced about a City contract to purchase body-worn cameras for Philadelphia police officers. When plaintiff was hired as CIO, the City was engaged in an ongoing pilot program with Axon Enterprises, Inc. ("Axon") to test body cameras. Defs.' SUMF ¶¶ 38-39. In April of 2017, plaintiff received a draft request for proposal ("RFP") related to the purchase of 4,000cameras. Id. ¶ 40. Plaintiff thought the RFP violated City procurement rules and state anti-bid rigging law because only one vendor, Axon, could qualify to submit a bid under its terms. Pl.'s CMF ¶ 97. Plaintiff reported these concerns to James White, the OIT Integrity Officer, who communicated with Ellen Kaplan, the City's Chief Integrity Officer, about the issue. Id. ¶¶ 98-99. On April 6, 2017, Kaplan emailed Slusser and three other City officials to inform them of OIT's concerns about the RFP. Id. ¶ 100; Pl.'s Opp'n Ex. W.

On or about May 11, 2017, plaintiff attended a meeting to discuss procurement of the body cameras with multiple City officials, including Derenick-Lopez, Kaplan, Slusser, and Brian Abernathy, the City's First Deputy Managing Director. Defs.' SUMF ¶ 46; Brennan Dep. 106:16-17. According to plaintiff, at the meeting Abernathy "scolded me immediately" for opposing the RFP and "blew me off." Brennan Dep. 107:1-15. In response, plaintiff said he thought the draft RFP was "rigged" for Axon and violated City procurement rules. Id. at 143:14-144:3. After the meeting, the City did not issue the RFP. Defs.' SUMF ¶ 48. Instead, the City procured the cameras from Axon using a cooperative purchasing agreement—which bypassed the competitive bidding process—for approximately $12.5 million. Defs.' SUMF ¶ 49; Pl.'s CMF ¶ 110. Plaintiff did not raise any additional complaints about body camera procurement between the meeting on May 11, 2017 and the end of his employment with the City. Defs.' SUMF ¶ 51.

Plaintiff testified that he believed his relationship with Derenick-Lopez became more hostile following the meeting of May 11, 2017. Brennan Dep. 42:15-18. According to plaintiff, Derenick-Lopez began disregarding his advice about software purchases, "using" plaintiff's employees without informing him, and making plans for OIT without his involvement. Defs.' SUMF ¶¶ 53-55; Pl.'s CMF ¶¶ 138-144. In addition, plaintiff testified that the "tenor" of hisweekly meetings with Derenick-Lopez "changed drastically" and became "caustic screaming matches." Brennan Dep. 177:16-23.

C. Comcast Franchise Agreement

Third, plaintiff alleges retaliation for his complaints about Comcast's failure to meet certain deadlines required by its cable franchise agreement with the City. The franchise agreement required that Comcast perform repair work on its cable and fiber optic network by quarterly deadlines. Defs.' SUMF ¶ 57; Brennan Dep. 153:5-9. Under the agreement, Comcast's failure to meet the deadlines would result in penalties. Defs.' SUMF ¶ 59. As CIO, plaintiff monitored Comcast's compliance and was responsible for enforcing any penalties under the agreement. Pl.'s CMF ¶ 120. Comcast missed the June 30, 2017 deadline to fix certain portions of the network and, as a result, paid the City a $250,000 penalty pursuant to the terms of the agreement. Defs.' SUMF ¶¶ 57-59.

In November of 2017, plaintiff concluded that Comcast would likely fail to meet its next deadline, on December 31, 2017. Id. ¶ 60. According to plaintiff, on multiple occasions in November and December 2017, he told Derenick-Lopez that he thought Comcast might be liable for a second penalty. Brennan Dep. 156:1-4, 202:18-203:4. Plaintiff testified that, in response, Derenick-Lopez told him the Mayor's Office wanted him to "take it easy" on Comcast. Defs.' SUMF ¶ 62. Plaintiff replied that he would not "take it easy." Pl.'s CMF ¶ 129; Brennan Dep. 157:1-6; 225:17-226:2. Derenick-Lopez said she encouraged plaintiff to negotiate any disagreements with Comcast. Derenick-Lopez Dep. 167:23-168:7. Plaintiff was terminated before he could determine whether Comcast finished the required repairs by the December 31, 2017 deadline. Defs.' SUMF ¶ 64.

D. Sensitivity Training

Finally, plaintiff alleges that defendants retaliated against him after he resisted requests by Derenick-Lopez that he attend sensitivity training in the weeks before he was terminated. Derenick-Lopez communicated these requests after two episodes in which plaintiff allegedly made inappropriate public comments: first, before a July 18, 2017 meeting between City officials and executives of SAP, a City technology vendor (the "SAP meeting"); and second, at an October 12, 2017 conference hosted by the City and coordinated by plaintiff (the "Smart Cities Conference"). Defs.' SUMF ¶¶ 67-69, 78-79; Pl.'s CMF ¶ 148.

Two of the City officials who attended the SAP meeting with plaintiff—Harold Epps and Dawn Somerville—testified that, on the way to the meeting, plaintiff commented on the appearance and age of the female SAP executive with whom they were scheduled to meet. Def.'s SUMF ¶ 68. According to Epps, plaintiff said "either she's too young to have that job or she's too pretty to have that job, one or the other." Defs.' Mot....