Brzozowski v. Pa. Tpk. Comm'n

FRANK T. BRZOZOWSKI v. PENNSYLVANIA TURNPIKE COMMISSION

CIVIL ACTION NO. 5: 15-2339

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 20, 2019

MEMORANDUM

KEARNEY, J.

A male toll collector in his late fifties seeking promotions to other jobs within the Pennsylvania Turnpike Commission first needs to be qualified for the new jobs. If so, the Commission may not deny him the job to retaliate for earlier constitutionally protected conduct and may not discriminate against him based on his age, sex or national origin. When the Commission did not transfer him to new jobs and later fired him for misconduct, the toll collector pro se sued the Commission, the Pennsylvania Governor and many employees and agents. We dismissed two earlier complaints for failing to state a claim. He now alleges the Commission and two of its employees failed to move him into his desired jobs and fired him to retaliate under the First Amendment for assisting minorities or because of sex, age or national origin (Polish-American) discrimination. He also seeks wages for work under an unjust enrichment theory. After parsing through the toll collector's pro se Second Amended Complaint, we dismiss his claims against the individual defendant employees, the claims for First Amendment retaliation, unjust enrichment, discrimination based on national origin, and discrimination for age and sex for all but one desired promotion. The toll collector may seek discovery into whether the Commission discriminated against him based on his age or sex when failing to promote him to an IT Executive Assistant.

I. Facts alleged in the pro se Second Amended Complaint.

Frank T. Brzozowski, a man of Polish descent¹, began working at age 48 for the Pennsylvania Turnpike Commission (the Commission) in 2003 as a toll collector.²

The Commission promotes Mr. Brzozowski to Executive Assistant

in its Office of Diversity and Inclusion

Mr. Brzozowski worked as a toll collector until 2012 when the Commission promoted him to Executive Assistant in the Office of Diversity and Inclusion.³ The Office of Diversity and Inclusion handles civil rights issues, making it "disliked and unpopular with the [Commission] workforce of about 85% Caucasian males."⁴

Around the time of this promotion, he interviewed for the Interchange Manager position.⁵ The Commission did not promote him to Interchange Manager but instead hired three other men and paid them an annual salary of $61,000.⁶ Mr. Brzozowski thought he heard on a phone call the Commission would pay him a salary of $61,000 in his Executive Assistant role but he later discovered he would start at $50,000 until he completed training.⁷ Mr. Brzozowski does not allege he completed training.

After the Commission promoted him, Mr. Brzozowski started attending an in-house training course at "PTC University to become qualified and more efficient at his job."⁸ He took these course "to improve his clerical skills," "to perform his duties at his position," and prove "he had the background to perform other positions such as Interchange Manager."⁹

In his role as Executive Assistant, Mr. Brzozowski evaluated bids for Commission projects to ensure the contractor met the ten-percent quota for hiring minorities or disadvantaged business entities.¹⁰ He alleges often times the Commission awarded a contract to a contractor who failed to meet the quota, even though "the second or third ranked prime contractor did meet the 10% criteria."¹¹ He protested this practice as "unfair competition."¹² Mr. Brzozowski alleges "[s]omemembers of the engineering department did not like [Mr. Brzozowski]" when he collected contractor records to ensure compliance with the minority business quota.¹³

On June 26, 2012, Dorothy Ross, during a Microsoft Word course, accused Mr. Brzozowski of making "disparaging remarks" about a black coworker.¹⁴ Ms. Ross complained to Human Resources resulting in the termination of a black employee.¹⁵

The Commission denies promotions and gives the jobs to women.

In September 2013, Mr. Brzozowski applied for the Executive Assistant position in the IT Department, a position for which Mr. Brzozowski met the qualifications.¹⁶ He could "easily perform the duties" of the IT Executive Assistant Position because he worked in the IT department in 2003.¹⁷ Patricia Schlegel and Dorothy Ross "arranged scheduling, conspired and ensured that the someone else other than Mr. Brzozowski would get the position."¹⁸ The Commission hired a "younger woman" for the IT Executive Assistant position.¹⁹

In October 2013, the Commission hired Mses. Marcella and Sebring in the legal department, "for a confidential position that was not available to [Commission] employees."²⁰ Mses. Marcella and Sebring are "better looking women than [Mr. Brzozowski]" and "were trained for positions that would allow advancement to better positions."²¹

The Commission fires Mr. Brzozowski.

On December 11, 2013, Mr. Brzozowski arrived late to a Microsoft Excel test administered by Ms. Ross after finishing up a task for his supervisor.²² Ms. Ross retaliated against him by (1) failing to give him a one-minute warning before the test ended and (2) reporting he violated the workplace violence policy "to cover-up her corrupt testing, and to conceal a biased selection process."²³ The same day, Ms. Ross "verbally threatened [Mr. Brzozowski and his supervisorMyneca Ojo] in Italian, a discriminatory act derogatory to Mr. Brzozowski of Polish Descent and an act of national origin discrimination."²⁴

Ms. Schlegel terminated the 58-year-old Mr. Brzozowski on December 26, 2013 for misconduct.²⁵ The Commission replaced Mr. Brzozowski with a "young woman."²⁶

On June 25, 2014, Mr. Brzozowski filed a Charge of Discrimination with the Equal Employment Opportunity Commission alleging the Commission discriminated against him. He checked the boxes for discrimination based on sex, national origin, age, and retaliation and wrote in the narrative section:

On May 5, 2003, [the Commission] hired me as a Toll Collector. On April 17, 2012, [the Commission] promoted me into the position of Executive Assistant. I was discharged on December 12, 2013.

On or about October 2013, I discovered that Alice Sebring (Female, Legal Assistant) and Anna Marcella (Female, Legal Secretary) were hired for their respective positions. I was never given the chance to apply to either position because they were not posted. Ms. Sebring and Ms. Marcella were both hired as external candidates. I also applied for Executive Assistant Information Technology on September 26, 2013, and was not selected for that position either. On December 12, 2013, I was suspended and later discharged after I was falsely accused of workplace violence by Dorothy Ross (Human Resources Specialist, Female). Ms. Ross also stated that I threw the manual across the table when I was told I could not use it.

I believe [the Commission] discriminated against me based on my age (58) and retaliation in violation of Age Discrimination in Employment Act, sex (male), national origin (Polish) and in retaliation in violation of Title VII of the Civil Rights Act of 1964 as amended, Title VII.²⁷

The Equal Employment Opportunity Commission responded on January 23, 2015 addressing his charge:

You were hired in 5/03 as a Supplemental Toll Collector, and in 2012 applied for, and were promoted to, Executive Assistant. Regarding the positions of Legal Assistant and Legal Secretary which you could not apply for, the record indicates that both positions were classified as "confidential," and so were not posted internally in accordance with policy.

The evidence indicates that on 12-12-13, your employment was terminated for violations of policy, following an internal investigation. On 12-11-13, the Training and Development Specialist was administering exercises for your interview for a position. She informed you that you were not to use the Excel Manual as a cross reference, at which time she observed that you whipped the manual across the table and gave her what she considered to be a terrible glare, to the point she was very frightened. This was reported to [the Commission], and an investigation was conducted. The investigation also revealed that you had violated the Electronic Communications Policy regarding computer usage. Accordingly, your employment was terminated for policy violations.²⁸

Mr. Brzozowski sues the Commission and several individuals.

On April 27, 2015, Mr. Brzozowski sued the Pennsylvania Turnpike Commission, and several of its agents and employees including William K. Lieberman, A. Michael Pratt, Pasquale T. Deon, Sr., Sean Logan, Barry J. Schoch, Patricia Schlegel, Judy Treaster, Dorothy Ross, Patrick Caro, Jill Davis, David Smith, Lynn Feeman, under Title VII, the Age Discrimination in Employment Act, and the Pennsylvania Human Rights Act.²⁹ He also sued Governor Thomas W. Corbett, the Pennsylvania State Police, and Corporal Shawn Kernaghan under 42 U.S.C. § 1983 claiming false arrest, malicious prosecution, and fabrication of evidence. Defendants moved to dismiss. On February 25, 2016, our former colleague Chief Judge Stengel dismissed the individual defendants and the State Police with prejudice but granted Mr. Brzozowski leave to amend his complaint against the Commission.³⁰

Mr. Brzozowski filed his Amended Complaint on March 30, 2016 alleging the same claims against Defendants and new claims under the First Amendment, Pennsylvania's Whistleblower Law, the Fair Labor Standards Act, the Fair Pay Act, and the Equal Pay Act.³¹ Defendants again moved to dismiss. In an August 24, 2016 Order, Judge Stengel dismissed Mr. Brzozowski's Amended Complaint for failure to respond to Defendants' motion to dismiss.³² Mr. Brzozowski appealed the dismissal on September 23, 2016.³³

On June 20, 2018, our Court of Appeals vacated the August 24, 2016 dismissal Order and remanded the case for further proceedings on the Amended Complaint.³⁴ On September 18, 2018, the Chief Judge...