Rosati v. Colello

94 F.Supp.3d 704

Patricia ROSATI

v.Sgt. Michael COLELLO, et al.

Civil Action No. 14–2402.

United States District Court, E.D. Pennsylvania.

Signed April 2, 2015.

Alexis Zafferes, Law Offices of Brian M. Puricelli, Newtown, PA, for Patricia Rosati.

Cara E. Leheny, City of Philadelphia Law Dept., Philadelphia, PA, for Sgt. Michael Colello, et al.

MEMORANDUM

DALZELL, District Judge.

I. Introduction

We consider here the defendants' motion for summary judgment. Plaintiff Patricia Rosati brings her claims under Title VII, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 42 P.S. §§ 951–963 (“PHRA”), alleging employment discrimination on the basis of sex, a hostile work environment, and retaliation for protected Title VII activity. Defendants are Sergeant Michael Colello and Captain Leonard Ditchkofsky of the Philadelphia Police Department and the City of Philadelphia.

In Count I—filed under Title VII against the City of Philadelphia—Rosati alleges that she was discriminated against on the basis of comments Sgt. Colello allegedly made about her children and pregnancy, Sgt. Colello's assignment of extra responsibilities to her, an investigation into an incident from May 2, 2012, and a work reassignment. Complaint at ¶ 49. Rosati alleges that she engaged in protected activity under Title VII by: reporting the May 2, 2012 incident, filing a formal complaint on May 30, 2012 with the Pennsylvania Human Relations Commission (“PHRC”), calling Internal Affairs on September 16, 2013, and filling out a complaint form on March 6, 2014 to add retaliation claims to her prior PHRC complaint.Id. at ¶ 51. Rosati alleges she was retaliated against by: being reassigned to One Squad on May 29, 2012, the destruction of her August 26, 2013 request for maternity leave, the return of her restricted duty request to her for corrections in March of 2014, the receipt of a counseling form about not following the chain of command, and the inclusion of that counseling form in her 2013 performance evaluation. Id. at ¶ 52. In Count II—filed under the PHRA against the City of Philadelphia, Sgt. Colello, and Capt. Ditchkofsky—Rosati alleges the same misconduct, protected activity, and retaliation. Id. at ¶¶ 63–66.

Defendants moved for summary judgment, and Rosati opposes their motion.

II. Standard of Review

Fed.R.Civ.P. 56(a) provides:

A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if 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. The court should state on the record the reasons for granting or denying the motion.

A party moving for summary judgment bears the initial burden of informing the district court of the basis for its argument that there is no genuine issue of material fact by “identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). If the moving party meets this initial burden, Fed.R.Civ.P. 56 then obliges the non-moving party to show, via submissions beyond the pleadings, that there are genuine factual issues for trial. Id. at 324, 106 S.Ct. 2548.

There is a genuine issue of material fact only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining further that a mere scintilla of evidence is insufficient). Material facts are those that would affect the outcome of the case under the governing law. Id. at 248, 106 S.Ct. 2505. We may not make credibility determinations or weigh the evidence, and we must draw all reasonable inferences in favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Armour v. County of Beaver, 271 F.3d 417, 420 (3d Cir.2001). Our function is to determine whether there is a genuine issue for trial, and we may not prevent a case from reaching a jury simply because we favor one of several reasonable views of the evidence. Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.1999) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505 ). However, a non-moving party cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

III. Factual Background

Patricia Rosati has spent most of her career in the 8th Police District¹ in the City of Philadelphia since becoming a police officer in 1996. Joint Stip. at ¶¶ 20–21. After working as a patrol officer and then COMPSTAT officer, Rosati became a Crime Prevention Officer in 2011, a position she held for about two and a half years. Id. at ¶¶ 23–26. Capt. Ditchkofsky became the commanding officer at the 8th District in February of 2012.Id. at ¶¶ 2, 9. Sgt. Colello was the Administrative Sergeant in the 8th District from early 2008 through mid–2012. Id. at ¶¶ 10, 16–18.

From 2005 through 2014, Rosati took multiple leaves of absence under the Family Medical Leave Act and frequently worked on restricted duty largely as the result of pregnancy or pregnancy-related conditions. Id. at ¶¶ 27–49. The relevant period for this action began in February of 2012. We recount the facts from Rosati's perspective as the non-moving party.

In February of 2012, Rosati asked Sgt. Colello for permission to take a few hours off to attend a doctor's appointment, and Sgt. Colello responded by asking if she “was going to get fixed.” Rosati Dep. at 102:9–12. Sgt. Colello made this comment in the 8th District's Operations Room with three or four people present, although Rosati is not sure who was there. Id. at 104:1–7. Rosati received the time off she requested. Id. at 109:21–24. Rosati told Lieutenant Sue Farley about the “get[ting] fixed” comment about a week after it happened. Id. at 111:14–112:1. Rosati did not tell anyone else about the comment and did not document it. Id. at 112:5–14. That same month, when Rosati told Sgt. Colello that she was pregnant, he asked if she “was keeping the baby.” Id. at 102:20–22. Rosati believes this comment was made within the same week as the first comment. Id. at 108:2–4. Rosati also says Lt. Farley told her that Sgt. Colello “made comments on a weekly basis about” her shifts and childcare needs. Id. at 103:2–7. Rosati is not aware of any other specific comments made about her.² Id. at 103:8–9.

On February 10, 2012, Rosati was placed on restricted duty because of pregnancy-related restrictions. Joint Stip. at ¶ 38. Three months later, on May 2, 2012, there was an incident between Rosati and Sgt. Colello in the kitchen attached to the 8th District's Operations Room. Id. at ¶ 54. Rosati walked into the 8th District's kitchen to announce that her daughter had received an award for student of the month. Rosati Dep. at 93:5–14. Sgt. Colello and Officer Bob Sweeney were both in the room, and Sgt. Colello said, “Let me guess. You need a day off.” Id. at 93:13–16. Sgt. Colello called Rosati “a fucking scammer,” id. at 93:22–24, and made nepotism-related accusations. Id. at 93:23–94:3. Officer Sweeney left the room. Id. at 94:5–6. After the door was shut, Rosati asked Sgt. Colello if he had a problem with her. Id. at 94:11–13. Sgt. Colello said that once their current female lieutenant was replaced by a male lieutenant Rosati was “going to be fucked, because [she was] going [to] have four kids running around and [was] going to be pushing a car.” Id. at 94:15–19. According to Rosati, “pushing a car” means an assignment to a line squad position rather than an administrative one. Id. at 100:2–3.³

After the incident, the parties agree that on May 25, 2012 Sgt. Colello requested that disciplinary action be taken against Rosati for insubordination. MSJ at ¶ 68; Pl. Resp. to Def. Facts at ¶ 68 (admitting those facts). Capt. Ditchkofsky never finished his investigation because Rosati “went out sick and never returned to the 8th District.” MSJ at ¶ 74; Pl. Resp. to Def. Facts at ¶ 74 (admitting those facts). However, in February of 2013 Lieutenant Monaghan conducted several interviews of witnesses to the incident. See Pl. Resp. Ex. 17. There are no allegations regarding any consequences from this investigation.

Around the same time, Capt. Ditchkofsky did not grant Rosati's request to work one week a month on a night shift, but did permit another male officer to do so. Pl. Resp. at 14. According to Capt. Ditchkofsky, Rosati wanted to change her shift to include one week of night work because he had assigned Officer Rudy Muller, the Community Relations Officer, to that schedule. Ditchkofsky Dep. at 106:10–18. Capt. Ditchkofsky explained that the shifts—which the City predetermined—did not permit such a schedule for an officer in the Crime Prevention position. Id. at 106:23–107:9. Capt. Ditchkofsky thus did not permit Rosati to do night work shifts because of her position as a Crime Prevention Officer and because of her pregnancy-related work restrictions. Id. at 107:9–14. The schedule permitting one week of night work was designed for Community Relations Officers to permit them to attend community groups' meetings. Id. at 108:10–109:1.⁴ Capt. Ditchkofsky further explained: “There's no one week of night work for a Crime Prevention officer. It's only steady day work. That's all the City allowed. And even if there was a week of night work, she couldn't have worked it because she wasn't allowed to go on the street. She was pregnant.” Id. at 109:7–14. Capt. Ditchkofsky could not assign Rosati to night work because “part of her restrictions was she wasn't supposed to work shifts”...