McLintock v. City of Phila.

504 F.Supp.3d 411

Tina MCLINTOCK, Plaintiff,

v.CITY OF PHILADELPHIA et al., Defendants.

Civ. No. 20-507

United States District Court, E.D. Pennsylvania.

Signed December 3, 2020

Christine E. Burke, Ari Risson Karpf, Ryan A. Krocker, Karpf, Karpf & Cerutti, P.C., Bensalem, PA, for Plaintiff.

Tiffany R. Allen, Nicole S. Morris, City of Philadelphia Solicitor's Office, Philadelphia, PA, for Defendants.

MEMORANDUM

Diamond, J.

Municipal employee Tina McLintock, a Caucasian woman, alleges that her supervisor David Jones and the City of Philadelphia discriminated against her because of race. Plaintiff's accusations generate more heat than light and have no record support. Accordingly, I will grant Summary Judgment in Defendants’ favor.

I. JURISDICTION

Plaintiff brings this action pursuant to the Pennsylvania Human Relations Act, the Philadelphia Fair Practices Ordinance, the First Amendment, 42 U.S.C. § 1981, and Title VII. See 43 Pa. Stat. Ann. § 951 et seq. ; Phila. Code. § 9-1101, et seq. The Court has jurisdiction to hear Plaintiff's federal claims under 28 U.S.C. § 1331 and supplemental jurisdiction to hear Plaintiff's state law claims under 28 U.S.C. § 1367.

II. LEGAL STANDARDS

Summary judgment is appropriate when "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." Fed. R. Civ. P. 56(a). The moving party must initially show the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is "genuine" if there is evidence on which a reasonable fact finder could return a verdict for the nonmoving party. Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A factual dispute is "material" if it might affect the case's outcome under governing law. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). I must view the facts and draw all reasonable inferences in the opposing party's favor, although "[u]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment." Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) ; see Anderson 477 U.S. at 255, 106 S.Ct. 2505.

If the moving party satisfies its burden, the opposing party must then show a disputed material factual issue. It is not enough simply to reiterate factual allegations or "show some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the nonmoving party must establish a triable issue 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," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed. R. Civ. P. 56(c).

Finally, summary judgment is appropriate if the responding party fails to make a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

III. CAUSES OF ACTION

Plaintiff presently works in the City's Department of Behavioral Health and Intellectual Disability Services. The gravamen of Plaintiff's instant Second Amended Complaint is that the failure to appoint her the Department's Chief Financial Officer apparently was the result of an agreement among various officials, acting under the guise of the City's diversity hiring program, to favor Black candidates and disfavor Caucasian candidates. (Pl. Opp'n Br. 10, 15.) Plaintiff brings three claims against both Defendants: (1) the failure to promote her was racial discrimination; (2) this failure was also retaliation for Plaintiff's opposition to the racism displayed by Black employees; and (3) Plaintiff was subjected to a hostile work environment as retaliation for filing an EEOC charge and the current lawsuit—all in violation of 42 U.S.C. § 1981 (Count I), Title VII (Counts II/IV), the PHRA (Count IV), the PFPO (Count V), and the First Amendment (Count III). (Pl. Opp'n Br. 3.) Although Plaintiff makes little effort to distinguish the claims and even less effort to address their distinctive elements, I will do so here

IV. FACTS

Relying on the Parties’ statements of undisputed material facts as well as deposition transcripts, discovery responses, exhibits, and other record documents, I have resolved factual disputes and construed the record in Plaintiff's favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

A. Employment and Organizational Background

Plaintiff has been a Philadelphia municipal employee for over 32 years. (Doc. 21, Ex. A, McLintock Dep. 12:14-19.) She holds a Bachelor's degree in Political Science and a Master's in Public Administration. (Id. at 11:22-12:8.) She is not an accountant, nor has she studied accounting. (Id. at 44:1-21) ("... I cannot say that I've specifically taken accounting classes.") She has worked in the District Attorney's Office, the Finance Department, and other agencies as a clerk typist and in other positions. (Pl.’s SUMF ¶ 3.) She has worked in DBHIDS since 2013, initially as a "fiscal officer," before being promoted to Fiscal Director in February, 2017. (Id. at 12:14-15:10; Doc. 21, Ex. B, Jones Dep. 15: 3-15.) As a fiscal officer, Plaintiff had six direct reports, but at present she supervises only five Department employees. (McLintock Dep. 16:7-16; 108:4-17.) Before seeking to become CFO, she unsuccessfully sought to become DBHIDS Deputy Commissioner. (Id. 153:24-154:14.)

Plaintiff reported directly to the Department's Chief Financial Officer, James Hoefler—a Caucasian man—until he retired in January 2020. (Doc. 21, Ex. C, Hoefler Dep. 10:5-12:5; 105:9-10.) In June 2019, Joseph Lowry, an African American man, began serving as CFO alongside Hoefler in a transition that continued until Hoefler retired. (Doc. 21, Ex. E, Lowry Dep. 56: 2-15; Jones Dep. 132:20-133:7; Pl.’s SUMF ¶ 28.) The CFO reports to both the Department's Commissioner and Deputy Commissioner. (Jones Dep. 14:7-12.)

Defendant David Jones, an African American man, is the Department's current Commissioner. (Jones Dep. 20: 1-5; Def's SUMF ¶ 9.) Provisionally designated in February 2017, Jones was permanently appointed Commissioner in July 2017. (Id. at 10:13-20.) Since January 2018, the Deputy Commissioner has been Jill Bowen, PhD, a Caucasian woman. (Doc. 21, Ex. D, Bowen Dep 17:6-11; Pl.’s SUMF ¶ 3 n.3.)

B. Plaintiff's Employment Difficulties

Jones supervises 291 budgeted employees and has "additional oversight for community behavioral health"—totaling 1000 people. (Jones Dep. 25:20-26:2; 47:13-21.) (Jones Dep. 25:20-26:2; 47:13-21.) He has very little direct contact with Plaintiff. (Id.) Between late 2015 and early 2016, however, Jones and Plaintiff discussed Hoefler's announced retirement. (McLintock Dep. 20:3-8; Def. SUMF ¶ 13, n.1.) In her deposition and in her first EEOC complaint, Plaintiff stated that Jones told her that she was "next up" in the "natural progression." (Id. at 21:15-21; 24:16-24.) Jones told Plaintiff that she ought to "shadow" Hoefler. (Def's SUMF ¶ 14-16; Pl.’s SUMF ¶ 11-14.) Jones testified that this was in accordance with past practice when the Department's CFO leaves:

... whomever [sic] comes in next, it's good for that person to have information so that they can be able to share it with -- whether they move into a role or CFO or not, it's information that's critical for the department to have.

So when [Plaintiff] came in, it was from—candidly, from that conversation [with another staff member about past Departmental practice] that I thought—so it will be good to have [Plaintiff] shadow Mr. Hoefler to get information; that way she can share it. We would be able to retain the information and she would be in a place to be able to share it or sustain it either way.

(Jones Dep. 137:1-13.) The record shows Plaintiff alone believed that Jones directing her to shadow Hoefler meant that he had decided to promote her.

The ‘shadowing’ process lasted from 2015 until November 2018. (Id.) Although Hoefler thus made the "assumption" that Plaintiff was "next in line" and qualified for his job, he never suggested to Bowen, Jones, or Plaintiff that she should or would replace him. (Hoefler Dep. 22:15-25:6; 20:8-23.)

Uncontradicted evidence shows that after her last formal evaluation, Plaintiff became a problematic employee. Jones, Bowen, and Hoefler described Plaintiff's difficulty working with others:

[Jones]: [T]hey were really challenged by Tina's interpersonal skills, really her lack of flexibility that she would at times only see one right way of doing it and it was hers, and that while everyone was invested in getting to the right outcome, of course, it was -- it was the unwillingness and unrelentingness of it being only Tina's way that created a lot of challenges.

(Jones Dep. 20:16-24; Bowen Dep. 65:0-66:5; Hoefler Dep. 37:24-41:3; Doc. No. 20, Ex. F, Vasko Declaration ¶ 8.) Her supervisory skills were lacking. (Bowen Dep. 68:5-11; Doc. No. 20, Ex. F, Vasko Declaration ¶ 7.) ("[Bowen]: She was having difficulty with some of the people that reported to her.") ("[Vasko]: Through observation of Tina McLintock in meetings ... it is my opinion that her management style and way of communication, does not lend well to groups ... that have to work as a team.") In addition to provoking various staff complaints, Plaintiff's surly manner caused at least one employee to tender her resignation. (Jones Dep. 23:7-16; 25:1-3.) ("[The employee] felt like she needed to leave the department in order to get away from the harassment she was experiencing.") Plaintiff was aware...