Holt v. Pennsylvania

DAVID HOLT II, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.

CIVIL ACTION No. 17-2511

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

May 23, 2018

Goldberg, J.

MEMORANDUM

Plaintiff David Holt brings the current action under Title VII, 42 U.S.C. §§ 1981 and 1983, and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq., alleging discrimination and retaliation during his continuing tenure of employment with the Pennsylvania State Police. By way of two separate Motions, the various Defendants seek dismissal of the First Amended Complaint. For the following reasons, I will grant the Motions in part and deny them in part.

I. FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Amended Complaint:¹

Defendant Commonwealth of Pennsylvania ("Commonwealth") hired Plaintiff on November 6, 1994, as a member of the Pennsylvania State Police Department ("PSP"). Plaintiff was promoted to corporal in May 2005, and then to sergeant in November of 2006. Plaintiff wasassigned as the Station Commander of the PSP Pocono Station. The rank of Station Commander provides a degree of authority, prestige, and increased career opportunities within the PSP, in contrast to other assigned sergeant positions. (Am. Compl. ¶¶. 21-26.)

On April 6, 2009, Plaintiff filed a formal internal Equal Employment Opportunity ("EEO") complaint, against the PSP, alleging racial discrimination. Thereafter, on May 21, 2009, Plaintiff filed a racial discrimination charge against the PSP with the Pennsylvania Human Relations Commission ("PHRC"), which was cross-filed with the EEOC. Plaintiff filed a second PHRC charge of racial discrimination against the PSP on July 21, 2009, which charge was then cross-filed with the EEOC. Finally, on October 19, 2010, Plaintiff filed a civil lawsuit in the United States District Court for the Eastern District of Pennsylvania against the Commonwealth, the PSP, and others, alleging First Amendment retaliation, race discrimination, and employment discrimination and retaliation. (Id. ¶¶ 27-31.)

On September 27, 2011, Plaintiff sent an email to Defendant Commissioner Frank Noonan, a supervisor at the PSP, regarding both the discrimination and retaliation charges and the pending federal lawsuit. In October 2011, Corporal Jeffrey Taylor met with Defendant Lieutenant Colonel George Bivens, Joseph Kovel—Union President of the Pennsylvania State Troopers Association—and Human Resources representative Richard Achey regarding Plaintiff's claims of discrimination and retaliation. Despite the meeting, neither the Commonwealth nor any of the individuals took action to investigate or remedy the Plaintiff's complaints. (Id. ¶¶ 33-35.)

In October 2013, Plaintiff's federal race discrimination/retaliation trial commenced against PSP and other defendants. A jury rendered a verdict against the Commonwealth and the PSP in favor of Plaintiff on some of his claims for $50,000 damages. Plaintiff advised hisCommanding Officer, Defendant Captain Gregory Bacher, of the outcome of the trial and the fact that the NBC News 10 was going to interview him about the trial, verdict, and ongoing discrimination. Captain Bacher warned Plaintiff not to say anything negative that would put the PSP in a "bad light." NBC News 10 subsequently aired Plaintiff's interview in the area where PSP headquarters is located. (Id. ¶¶ 37, 39-42.)

On March 29, 2014, Plaintiff became eligible for promotion. Despite the fact that Plaintiff scored a 94% on the promotional exam for lieutenant, he was skipped over for any promotion. Instead, Commissioner Noonan and Lieutenant Colonel Bivens chose allegedly less qualified, lower-scoring whites who were ranked lower on the promotional list. Noonan and Bivens again skipped over Plaintiff for promotion in July 2014. In August and September 2014, Plaintiff received stellar reviews and evaluations about his work as Station Commander. (Id. ¶¶ 36, 43-50.)

In October 2014, Plaintiff received a citizen complaint concerning a serious crash involving lead investigator Trooper Randall Hart, Trooper Joel Cikowski, and supervising Corporal Francis Aigeldinger, all of whom are white males. The complaint indicated that Hart failed to arrest a DUI suspect for crashing his vehicle into another vehicle causing significant damage and injuring an eighteen-year-old woman. Under PSP practice and regulation, Plaintiff reported the incident to the Internal Affairs ("IA") Investigative Unit. Plaintiff subsequently informed the Pocono Station members of the citizen complaint and the IA investigation. Some members of the Station, including Trooper Lisa Girman, "belligerent[ly]" challenged Plaintiff's decision to report the incident. Plaintiff asked Girman to leave roll call and stated, "I could be like how the old sergeants were back in the day, when they would tell you 'we could just take our shirts off and go out in to the garage and settle this like men.'" (Id. ¶¶ 52-58.)

Shortly thereafter, Plaintiff was advised that some members were "offended" by his comment. Despite Plaintiff's immediate open apology email to all station members, Corporals Frances Aigeldinger and Jeremy Franklin, white males, circumvented the chain-of-command by reporting the roll call incident directly to Captain Bacher, claiming that Plaintiff threatened Trooper Girman with physical violence. Although circumvention of the chain-of-command is a punishable work rule violation, Captain Bacher did not discipline Corporals Aigeldinger and Franklin. On October 20, 2014, Captain Bacher contacted the PSP's EEO Director, Captain Wendell Morris, and notified him of the Corporals' complaint. Captain Morris advised that no EEO violations occurred in reference to that complaint. The next day, Captain Bacher contacted Corporal Aigeldinger and asked him to obtain signed letters from all of Plaintiff's subordinates identifying any misconduct they knew about Plaintiff. (Id. ¶¶ 59-71.)

On October 27, 2014, Plaintiff was scheduled to attend the second phase of his jury trial on the federal discrimination/retaliation claims. He named Corporal Aigeldinger as the "Acting Station Commander" in his absence. (Id.) Following the second jury trial, Plaintiff was awarded damages against PSP in the amount of $1.9 million. Plaintiff immediately texted the verdict award to several members of Pocono Station. Randell Henzes of the Office of the Attorney General for the Commonwealth of Pennsylvania was present for the verdict. Plaintiff avers that, as of January 1, 2016, Defendants Noonan, Brown, and Blocker were informed by Henzes of the judgments. Plaintiff also believes that, before November 6, 2014, Defendant Captain Bacher knew of these judgments. (Id. ¶¶ 72-76, 79-81.)

At a meeting with Plaintiff on November 6, 2014, Captain Bacher produced a thick manila folder containing what Bacher called "station complaints" against Plaintiff. Plaintiff then became the subject of an IA investigation initiated by Bacher, who claimed that Plaintiffthreatened Trooper Girman at roll call on October 16, 2014. This investigation was contrary to how Bacher treated complaints received against white sergeants. (Id. ¶¶ 83, 85-89.)

On December 6, 2014 and January 14, 2015, Commissioner Noonan and Lieutenant Colonel Bivens again passed over Plaintiff for promotion to lieutenant. (Id. ¶¶ 90, 99.)

On January 28, 2015, Plaintiff received written correspondence from Captain Bacher indicating that Bacher cleared Hart of all of the administrative charges relating to the IA investigation originating from the DUI crash. Shortly thereafter, on February 17, 2015, Plaintiff received a "sustained" PSP Disciplinary Action Report from Captain Bacher based on Plaintiff's alleged creation of a hostile work environment and disparate treatment of employees. Plaintiff was placed on "Restricted Duty" and Captain Bacher ordered Plaintiff's immediate supervisor, Lieutenant Dance, to drive to the Pocono Station every day to physically supervise Plaintiff. (Id. ¶¶ 100-102, 104.)

On February 26, 2015, Plaintiff filed an EEO complaint against Captain Bacher. Captain Bacher "un-expectantly" retired from the PSP two weeks later. (Id. ¶¶ 106-108.)

On April 13, 2015, while driving his PSP-assigned vehicle to work, Plaintiff encountered and followed a DUI driver, but was unable to stop the driver because Plaintiff's vehicle's emergency lights and sirens were "purposely disabled by the PSP and Captain Bacher." As a result, Plaintiff received a twenty-day suspension without pay from PSP's Disciplinary Officer Captain Troxell and his assistant, Lieutenant O'Hara. Thereafter, Captain Cain and Major Hoke involuntarily transferred Plaintiff from the Pocono Station to Highspire, Pa. The suspension resulted in a loss of wages of $10,000 and precluded Plaintiff from being eligible for promotion or transfer for one year. The transfer further resulted in approximately $32,000 in lostconstruction zone overtime wages, deprived Plaintiff of the use of a Department vehicle, and changed the nature of Plaintiff's duties. (Id. ¶¶ 109-110, 112-117.)

On April 25, 2015, Plaintiff filed an internal EEO complaint against Captain Cain, Lieutenant Colonel Bivens, and Major Hoke. On the same date, he sent an e-mail to PSP Commissioner Brown concerning his complaints of discrimination and retaliation by high-ranking PSP officers. EEO Director Captain Morris responded, on June 9, 2015, that he would not investigate Colonel Bivens. (Id. ¶¶ 118, 120, 121, 123.)

Plaintiff received his yearly evaluation from Lieutenant Dance in June 2015, rating him as "outstanding." Captain Cain, however, changed Lieutenant Dance's ratings and listed Plaintiff as "unsatisfactory" in every category, despite the fact that Cain was not Plaintiff's direct supervisor. (Id. ¶¶ 124, 126.)

On August 25, 2015, Plaintiff became the subject of another PSP IA investigation, initiated by Captain Cain, concerning Plaintiff's "off duty" conduct when he accidentally left...