Clark v. Com. of Pennsylvania

Decision Date04 May 1995
Docket NumberNo. CA 93-1365.,CA 93-1365.
Citation885 F. Supp. 694
PartiesVelma CLARK v. COMMONWEALTH OF PENNSYLVANIA, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

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Mignon D. Klein, Robert Ross, Alise R. Panitch, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, PA, for plaintiff.

Claudia M. Tesoro, Beth Anne Smith, Office of Atty. Gen., Philadelphia, PA, for defendants.

OPINION AND ORDER

ANITA B. BRODY, District Judge.

Plaintiff Velma Clark ("Clark"), a black woman, brings this action under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 1983, and the Pennsylvania Human Relations Act, 43 Pa. Cons.Stat.Ann. § 951, et seq. ("PHRA") against defendants Commonwealth of Pennsylvania Department of Welfare ("DPW"), Delaware County Board of Assistance ("DCBA"), and defendants Harold Sherman, Patricia Jacobs, Patricia Graves and Judith Montgomery in their official and individual capacities. Defendants have filed a motion for summary judgment, and plaintiff has filed motions for partial summary judgment and for leave to amend the complaint.

Although a number of legal issues are raised the following are the most significant: 1) whether the use of a civil service exam to determine promotions on two separate occasions within two years constitutes a continuing violation under Title VII of the Civil Rights Act of 1964; I find that it does not; 2) whether individual defendants may be liable in their individual capacity under Title VII and the PHRA; I find that they may not; 3) whether a state agency charged with ensuring that promotions within its county are lawful, but which allegedly was not involved in the promotions at hand, is a proper defendant in an employment discrimination case; I find that it is; and 4) whether a plaintiff can file claims in federal court based on EEOC complaints for which she had received right to sue letters more than ninety days prior, but which were reasonably related to the original EEOC complaint which was timely filed in federal court; I find that she can.

Before me now are 1) motion of plaintiff to amend her complaint; I will deny this motion; 2) motion of plaintiff for partial summary judgment; I will deny this motion; 3) motion of defendants for summary judgment on plaintiff's Title VII claims; I will deny motion of defendants for summary judgment on plaintiff's disparate impact, disparate treatment, hostile environment, and retaliation claims, except I will grant motion of defendants for summary judgment on plaintiff's disparate treatment claim based on the failure to promote in the autumn of 1987; 4) motion of individual defendants for summary judgment on individual liability under Title VII; I will grant this motion; 5) motion of defendants for summary judgment on plaintiff's PHRA claims; I will grant this motion; 6) motion of defendants for summary judgment on plaintiff's 42 U.S.C. § 1983 claim; I will defer ruling on this motion; and 7) motion of defendants for summary judgment as to plaintiff's request for compensatory and punitive damages under Title VII; I will limit plaintiff to compensatory and punitive damages for post November 21, 1991 acts of intentional discrimination.

I. Factual Background

The material facts relevant to the motion for leave to amend the complaint and to the motions for summary judgment are either undisputed or stated in a light most favorable to the non moving party1.

In 1971, plaintiff, Velma Clark, a black woman, went to work for the Philadelphia County Board of Assistance ("PCBA") as an Income Maintenance Caseworker ("Caseworker"). In October of 1982 she transferred as a caseworker to the Delaware County Assistance office ("DCAO"), an office under the supervision of the Delaware County Board of Assistance ("DCBA"). (Pl.'s Complaint, ¶ 12). At the time defendant Harold Sherman, a white man, was the Executive Director of the DCAO. In 1985 defendant Patricia Graves, a black woman, became Sherman's superior when she took the position of Area Manager in the Department of Welfare ("DPW") responsible for Delaware County. She remained in that position until September of 1988 (Graves depo. p. 216).

In November of 1985 defendant Sherman authorized the posting of three vacancies for Income Maintenance Supervisor ("Supervisor") positions within the DCAO. The DPW authorized specific methods that were permissible for directors to use in filling these positions. Included among these were those designated "promotion without exam method" and a civil service exam method used in conjunction with the rule of three ("civil service exam method").

Under the civil service exam method to be eligible for promotion an applicant must take, and pass, the civil service exam for the position. Possible passing exam scores include 108, 96, 84, 72, and 60; below this is failure. If an applicant passes the exam he or she is placed on the list of eligibles. Under the rule of three, which is a mandatory component of the civil service exam method (Def.'s answer to Pl.'s first set of interrogatories ¶ 6; Civil Service Commission Management Directive M580.1, Part A), the people with the top three scores on the list of eligibles, and anyone who ties them, is interviewed for the promotions. Once the list of interviewees is determined the decision of whom to promote is based solely on the interview, and the exam scores are no longer relevant.

Under the promotion without exam method a vacancy is announced and a deadline is set for applications. After the deadline has passed the candidates meeting minimum criteria are scored according to meritorious service and seniority. The meritorious service score is determined by assigning a point total for the candidate's rating on his or her last annual performance evaluation. The seniority score is determined by dividing the number of months that the candidate worked in the next lower classification by six. These two scores are then added together to attain the final promotional point total. All candidates who score within fifteen points of the highest scoring candidates are considered "relatively equal" and can be interviewed for the promotion. Again, once the list of interviewees is determined the scores are no longer relevant. (Marmelo letter to Ms. Martinez, Human Relations Representative dated 2-22-88).

In the fall of 1985 defendant Sherman chose to use the civil service exam method to fill the vacant supervisor positions despite the personnel/affirmative action officer Frank Marmelo's ("Marmelo") suggestion that he open up the process by using the promotion without exam method. (Marmelo depo. pp. 72-74, 85-87). During this time the DCAO had in place an affirmative action/equal employment policy.

In November of 1985 the civil service exam was administered for the position of supervisor; the top three scores were all 108s. Under the rule of three anyone who scored below 108 was ineligible for an interview. Although black employees applied for the Supervisor positions, including Clark, none were interviewed, all having scored below 108 on the exam. (Civil Service Commission Certification of Eligibles dated 11-15-85). Clark had scored an 84. All three positions were filled by white candidates who scored 108. Clark's evidence that personnel officer Marmelo gave the civil service list of eligibles to Sherman, and that Sherman was aware of the race of the people within his office supports the position that Sherman was aware that no black applicant had scored a 108 on the civil service exam. (Sherman depo. p. 96; Marmelo depo. pp. 93-94).

In January of 1987 there were three more vacancies for Supervisor positions and again Sherman elected to use the civil service exam method. Once more the top three scores were 108 and under the rule of three anyone who scored below 108 was ineligible for an interview. Again no black applicant, including Clark2, had scored 108, and none were interviewed for the positions. (Civil Service Certification of Eligibles dated 2-2-87). All three positions were again filled by white candidates who had scored 108 on the civil service exam. Clark's evidence again supports the position that Sherman was aware that no blacks had scored 108. (Sherman depo. p. 96; Marmelo depo. pp. 93-94).

On February 24, 1987, Clark filed her first claim of racial discrimination with the Pennsylvania Human Relations Committee ("PHRC") against the DPW, DCBA, Graves, and Sherman based on failure to promote. Although there was a space on the complaint for her to fill in if she was asserting a continuing violation Clark did not mark it as a continuing violation. Three weeks later Clark filed a formal complaint with the DPW's Bureau of Civil Rights Compliance. Although she had previously been friendly with defendant Sherman, after she filed her complaint he no longer spoke to her (Plaintiff's Exh. 22, Clark depo. p. 480), and Helen Wilson, Clark's manager and the superior of her immediate supervisor John Bragg ("Bragg"), on more than one occasion told Bragg that she didn't think that Clark should be filing complaints and creating problems. (Bragg depo. pp. 106-107).

In March of 1987 John Shelton, the President of the Chester County NAACP, contacted Sherman to request a meeting to discuss Clark's charges of discrimination. (Letter from C. Horsey to Sherman). During that same month defendant Sherman said to Marmelo in reference to Clark "I guess the colors are changing to fast for her." (Marmelo Civil Service Commission testimony pp. 44-45). Clark interprets this as a reference to the fact that while two of the six Supervisors who had left since 1985 were black, all of the applicants who filled the vacancies were white.

On April 2, 1987, Sherman, at a meeting with John Shelton, Clark, and Marmelo rearticulated his position that the civil service exam method was an objective means of...

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