Pierce v. City of Phila., CIVIL ACTION NO. 17-05539

DEANNA PIERCE, Plaintiff, v. CITY OF PHILADELPHIA, Defendant.

CIVIL ACTION NO. 17-05539

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

December 28, 2018

PAPPERT, J.

MEMORANDUM

Deanna Pierce is a Native American woman who has worked in the City of Philadelphia's Department of Prisons ("PDP") since 2002. This litigation emanates from the City's promotion of two PDP employees—one Latina and one African American—over Pierce for separate positions in the PDP. Pierce believes the PDP promoted the other employees in an effort to satisfy the City's goal of building a diverse municipal workforce that "looks like the City of Philadelphia." She claims the City discriminated against her on the basis of race, harassed her and retaliated against her for complaining of unlawful discrimination. Pierce seeks summary judgment on her discrimination claim with respect to one of the positions while the City moves for judgment in its favor on all claims. After thoroughly reviewing the record and holding oral argument, the Court denies Pierce's Motion and grants in part and denies in part the Motion filed by the City.

I

A

Deanna Pierce began working in the PDP as a social worker II on March 4, 2002. (Def.'s Stmt. of Facts ("Def.'s SMF"), ECF No. 35, at ¶ 2.) She was promoted to social work supervisor on February 6, 2006. (Id. at ¶ 3.) On July 6, 2011, she resigned from the PDP to care for her mother; she returned to the PDP as a social work supervisor on July 6, 2012. (Id. at ¶¶ 4-5; Pl.'s Am. Resp. Def.'s Stmt. of Facts ("Pl.'s Resp. Def.'s SMF"), ECF No. 51, at ¶ 4.) Pierce obtained a certification in correctional supervision from the American Correctional Association in 2013. (Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem. Supp.") Ex. A ("Pierce Dep."), at 20:2-20; Def.'s SMF, ECF No. 35, at ¶ 80.) She is a level II hostage negotiator at the PDP and a PDP facility representative for the Correctional Peace Officer Foundation. (Def.'s SMF, ECF No. 35, at ¶¶ 81-82.)

The PDP's written policy regarding race discrimination is contained in Section 1.C.8 of the Philadelphia Prisons Policies and Procedures. (Def.'s Mem. Opp'n Pl.'s Mot. Summ. J. ("Def.'s Mem. Opp'n") Ex. Y, ECF No. 41.) This policy, entitled the Equal Employment Opportunity/Sexual Harassment/ Discrimination ("EEO") policy, "ensure[s] that all qualified persons have an equal opportunity for access to employment, employment benefits, and other career and promotional activity" and prohibits discrimination "against any person employed or seeking employment because of . . . race." (Id.) The policy extends to any employment decision, including promotion, "based on one's membership in a protected category." (Id.) In addition, "[u]nlawful harassment based on one's membership in any . . . protected class," including "verbal or physical conduct based on race . . . when such conduct has the purpose or effect of: (i)unreasonably interfering with an individual's work performance, or (ii) creating an intimidating, hostile, or offensive work environment" is prohibited, as is retaliation against those who complain of employment discrimination in good faith." (Id.)

In addition to the EEO policy, the City's current Administration has a stated goal of a racially diverse municipal workforce that reflects the demographics of the City's population. (Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. ("Pl.'s Mem. Opp'n") Ex. K, ECF No. 40; Def.'s Mem. Opp'n Ex. X.) Specifically, Mayor James Kenney, who came into office in January of 2016, made it a "key priority" to build a City workforce that "looks like the City of Philadelphia."¹ (Def.'s SMF, ECF No. 41, at ¶ 26; Def.'s Mem. Opp'n Ex. X.) Kenney appointed Blanche Carney to be the first female African American Commissioner of the PDP in April of 2016. (Def.'s SMF, ECF No. 41, at ¶ 32.) Carney testified that she understands the City of Philadelphia, including the PDP, to have a policy of creating a municipal workforce that reflects the racial demographics of the City, and that Mayor Kenney instructed her to implement this policy in the PDP.²(Def.'s Mem. Supp. Ex. N ("Carney Dep."), ECF No. 34, at 38:10-15, 39:19-24.) The Diversity Initiative extends to executive-level employees. (Id. at 119:11-15.)

Similarly, PDP Human Resources Manager Tracy Delaney believes that the City has a policy, which "came along with" the Kenney administration, of promoting and retaining diverse employees. (Def.'s Mem. Supp. Ex. G ("Delaney Dep."), ECF No. 34, at 12:16-19, 35:6-24.) Delaney testified that the only way the PDP could achieve the City's goal to build a workforce that reflects Philadelphia's racial demographics is to consider race in hiring decisions. (Id. at 29:22-31:1.) While Delaney herself believes that the City's "policy of considering race in personnel decisions" is discriminatory and violates the PDP's EEO policy, she testified that to the best of her knowledge, the PDP has not made any hiring decisions based on race. (Id. at 30:6-9, 40:17-21, 41:10-42:8, 115:8-11.) One of the PDP's Deputy Commissioners, Robert Tomaszewski, also testified that he believes since Mayor Kenney took office, there has been an unwritten policy at the PDP that race is taken into consideration in hiring decisions. (Def.'s Mem. Supp. Ex. C ("Tomaszewski Dep."), ECF No. 34, at 57:8-13, 70:2-9.)³

B

i

When Carney became Commissioner, the percentage of Hispanics employed by the PDP at the executive level did not reflect the percentage of Hispanics living in the City. (Pl.'s SMF, ECF No. 32, at ¶ 35.) On March 18, 2016, PhiladelphiaCouncilwoman Maria Quiñones-Sanchez emailed Brian Abernathy, the City's First Deputy Managing Director and Carney's direct supervisor:

Brian, as you finalize the selection of the Prison Commissioner, I wanted to bring your attention to a highly qualified Latina in the system. We have no high ranking Latino in the Prisons. . . . When I spoke with Mayor Kenney yesterday, we discussed how we really need to try to get his Latino appointments up. This may work.

(Pl.'s SMF, ECF No. 32, at ¶¶ 37, 39.) Quiñones-Sanchez attached to the email the resume of Jennifer Albandoz, a social work supervisor at the PDP. (Id. at ¶ 37.) Albandoz had begun her career at the PDP in 1996 as a correctional officer. (Def.'s SMF, ECF No. 35, at ¶ 42.) She became a social worker in 2008 and was promoted to social work supervisor in 2011. (Id. at ¶ 43.) On April 1, 2016, Abernathy forwarded Quiñones-Sanchez's email to Carney, stating, "Wanted this on your radar." (Id. at ¶ 40.) Carney responded, "Thanks and I have supervised Mrs. Albandoz." (Pl.'s Mem. Opp'n Ex. N.) Carney did not have any further conversations with Abernathy about Quiñones-Sanchez's recommendation. (Def.'s Mem. Opp'n Ex. Z ("Second Carney Dep."), ECF No. 41, at 28:24-29:7.) Abernathy testified that he thought he called Quiñones-Sanchez to tell her he would "take her issue under advisement," but he "made no commitment to the position or to her desire." (Def.'s Mem. Supp. Ex. AA ("Abernathy Dep."), ECF No. 41, at 10:17-11:8.)

On April 16, 2016, one of former Mayor Rendell's employees, Rafaela Colon, sent Abernathy an email with a letter attached which stated:

It has come to my attention that for several years now, the [PDP] has lacked Latino representation . . . At this time, I am challenging the new city administration and its department to utilize their position in city government to impact real change in diversity by appointing a qualified, competent, and experienced Latino to the position of Deputy Commissioner for Restorative and Transitional Services. Furthermore, I strongly urgeyou and those in the respective departments to consider Ms. Jennifer Albandoz for the position. . . . Once Ms. Albandoz is appointed to this prestigious position, the City of Philadelphia can really boast about its diversity in appointing the first African-American woman as Commissioner and the first Latino woman as the Deputy Commissioner of the [PDP].

(Pl.'s SMF, ECF No. 32, at ¶ 41.) On April 17, 2016, Abernathy forwarded the email and letter to Carney and asked her to send him a list of the highest-ranking Latino PDP employees. (Pl.'s Mem. Opp'n Ex. Q.) Delaney prepared a list, which Carney sent back to Abernathy on April 18, 2016. (Pl.'s Mem. Opp'n Exs. R-S.) Later on April 18, Abernathy drafted a response to Colon's letter and sent the draft to Carney for her review. (Abernathy Dep. 24:8-15; Pl.'s Mem. Opp'n Ex. T.) In the proposed response, which he eventually sent to Colon, Abernathy stated, "we will do what we can to promote Latinos within the confines of civil service regulations." (Pl.'s Mem. Opp'n Ex. T.) Despite Colon's letter, Albandoz was not appointed Deputy Commissioner for Restorative and Transitional Services. (Hr'g Tr., ECF No. 54, at 21:7-10.)

ii

As a social work supervisor, Deanna Pierce reported directly to a Human Services Program Administrator ("HSPA"). (Pl.'s SMF, ECF No. 32, at ¶ 7.) There are two HSPAs in the PDP; both are civil service positions and considered executive staff. (Pierce Dep. 34:21-24; Pl.'s SMF, ECF No. 32, at ¶ 8; Def.'s SMF, ECF No. 41, at ¶ 6.) To apply for a promotion to a civil service position, PDP Policies and Procedures require employees to take a civil service examination. Under the "civil service rule of two," if there is one vacancy for a civil service position, the PDP must interview the two people with the highest exam scores who are interested in the position. (Def.'s SMF, ECF No.35, at ¶ 20.) The Commissioner has final decision-making authority with respect to hiring and promotions in the PDP. (Def.'s SMF, ECF No. 41, at ¶ 33.)

Pierce, along with three other PDP employees, took written and oral civil service examinations for the HSPA position on October 30 and November 14, 2014, respectively. (Pl.'s SMF, ECF No. 32, at ¶ 6; Def.'s SMF, ECF No. 41, at ¶ 12.) Adrienne Lyde (African American) scored 102.808 on the exam, Pierce scored 97.325, Dawn Hall (African American)...