Morrison v. Philadelphia Housing Authority, Civil Action No. 00-2847 (E.D. Pa. 4/11/2002)
| Decision Date | 11 April 2002 |
| Docket Number | Civil Action No. 00-2847. |
| Parties | BRIAN MORRISON, v. PHILADELPHIA HOUSING AUTHORITY, PHILADELPHIA HOUSING AUTHORITY POLICE DEPARTMENT and ANTHONY TAMBURRINO. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff was a Philadelphia Housing Authority ("PHA") police officer. He alleges that he was discriminated against because of his religion and retaliated against for being a witness in connection with claims of discrimination by two other Philadelphia Housing Authority Police Department ("PHAPD") police officers against the PHA.
Plaintiff has asserted a Title VII claim against the PHA and PHAPD for confiscating his firearm and later terminating him because he is a Muslim and in retaliation for his giving testimony. He has asserted claims under 42 U.S.C. § 1983 for violation of his First Amendment rights and his Fourteenth Amendment rights to due process and equal protection against PHA, PHAPD and PHAPD Sergeant Anthony Tamburrino. Plaintiff has also asserted a supplemental state law claim for intentional infliction of emotional distress against Sergeant Tamburrino.1
Presently before the court is defendants' Motion for Summary Judgment.
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986). Only facts that may affect the outcome of a case are "material." See Anderson, 477 U.S. at 248. All reasonable inferences from the record must be drawn in favor of the non-movant. See id. at 256.
Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 499 U.S. 921 (1991). A plaintiff cannot avert summary judgment with speculation or conclusory allegations, such as those found in the pleadings, but rather must present evidence from which a jury could reasonably find in his favor. See Anderson, 477 U.S. at 248; Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D.Pa. 1995).
From the evidence of record, as uncontroverted or otherwise viewed in a light most favorable to plaintiff, the pertinent facts are as follow.
Plaintiff began working as a police officer for the PHAPD on April 1, 1991. His partner during 1994 and early 1995 was Malik Abdullah who introduced plaintiff to the Muslim religion. Plaintiff testified that he became a Muslim during 1995 and began to attend services at a Muslim temple in late 1997. Plaintiff greeted Mr. Abdullah with the Arabic greeting "as salama lakum" in front of other officers and began wearing a kufee, a headpiece worn by Muslims but also by others. Plaintiff prayed before meals but has no recollection of any other officers observing such prayer.
In November 1994, plaintiff and Mr. Abdullah had to report for daily roll call in uniform although they were engaged in plain clothes work. They were asked by Lieutenant Geiger to report their whereabouts by radio each half-hour and to come to headquarters to report off-duty. Other non-Muslim officers were not required to do this. At an unspecified time in 1994, plaintiff and Mr. Abdullah were authorized to organize a community educational program which was "later" reassigned to non-Muslim officers.
At an unspecified time in 1995, Sergeant Tony Miller told plaintiff and Mr. Abdullah that he was "not going to have two Muslims working together" and thereafter the two were not assigned as partners. Plaintiff made a verbal request to sergeant Miller to partner again with Mr. Abdullah but such a reassignment was not made. Plaintiff acknowledged that partner requests were to be made in writing and "we failed to do it the correct way." Between April 1998 and July 1998 Sergeant Tamburrino made several disparaging comments to "plaintiff and/or Alaikum Malik Abdullah" about their Muslim faith and Muslim greeting. Plaintiff complained about these comments to then Chief Hughes who "put a stop to it."
On December 26, 1996, plaintiff injured his knee and was not working. When he asked to return to work, he was told that he could do so only if he was able to work full duty because no light duty was then available. Six non-Muslim female officers were assigned to light duty while pregnant or injured.2 One non-Muslim male officer was assigned to light duty after an injury for four days in the spring of 1999.
In March 1998, PHAPD Officer Stanley Bacone filed an EEOC complaint of sexual harassment against the PHA, PHAPD Sergeant Tony Miller and PHAPD Officer Angela Allen. Plaintiff was named in that complaint as a witness to some of the alleged acts of harassment and drafted a handwritten letter dated June 29, 1998 regarding those events. It is not clear from the record to whom this letter was directed, but it was apparently provided to assist Officer Bacone in the prosecution of his claim. Plaintiff did not provide any testimony in connection with the Bacone case.
By letter of August 4, 1998, Malik Abdullah was terminated by the PHAPD on the ground he was unfit based on his arrest by Philadelphia police on a domestic violence charge. In a letter of August 23, 1998 to the EEOC, Mr. Abdullah complained that he had been terminated because of his religion and named plaintiff as someone who had witnessed discriminatory conduct at the PHAPD. On September 22, 1998, Mr. Abdullah filed a formal charge of religious discrimination with the EEOC in which there is no mention of plaintiff. On May 4, 1999, Mr. Abdullah filed a federal suit against the PHA for religious discrimination under Title VII. Plaintiff was deposed on November 18, 1999 in connection with that suit and appeared as a witness at trial on April 4, 2000.3
The PHA has a domestic abuse policy which mandates that upon learning of the entry of a Protection From Abuse Order ("PFA Order") against a PHA police officer, any firearm issued by the PHA to that officer must be confiscated. On October 26, 1998, plaintiff's wife obtained a PFA Order against him. The order was served on plaintiff while he was at work. Sergeant Tamburrino received a copy of the order on November 2, 1998 and took plaintiff's PHA-issued firearm from him.4 On November 17, 1998, plaintiff's wife requested that the order be vacated. The next day, plaintiff sent a copy of the vacating order with a request for the return of his firearm to Sergeant Tamburrino, Captain Geiger and then PHAPD Chief Hargrave.5 The firearm was not returned.
From June 1998 to December 1998, plaintiff was assigned to light duty following aggravation of a knee injury. This duty encompassed answering telephones and doing paperwork at PHAPD headquarters and occasionally doing errands for superiors. While on light duty, an officer cannot work undercover or on patrol.
On the night of December 10, 1998, while returning to work after running a personal errand, plaintiff was mugged. He was hit on the head from behind and knocked to the ground. While lying face down on the ground, plaintiff felt what he thought was the gun in the back of his head and was told not to move as his pockets were searched. Plaintiff's wallet and cell phone were taken. Plaintiff then turned around and with his elbow knocked a gun from one of the attackers and instinctively felt for his gun when he remembered it had been confiscated. Plaintiff then lost consciousness for several minutes. Upon awaking, he walked back to work and reported this incident. Plaintiff states that as a result of being hit on the head, he has suffered headaches, impaired vision and permanent brain damage.6 Plaintiff was out from work on sick leave from December 10, 1998 to June 17, 1999.
Plaintiff was arrested on March 31, 1999 by Philadelphia police officers for forgery, theft, theft by deception, receiving stolen property and securing execution of a document by deception. The identified victim was Shonda Leach, a tenant of one of the PHA communities which plaintiff was assigned to patrol.
In January 1998, Ms. Leach received $70,000 from her father's estate. Unsure what to do with the money, she asked plaintiff for advice. Ms. Leach gave plaintiff a check for $10,000 which he told her he would invest in a savings account he would open in her name at Commerce Bank. Plaintiff told Ms. Leach she would receive a $400 interest check monthly. Ms. Leach asked for paperwork from the bank which plaintiff never provided. Ms. Leach then called Commerce Bank and discovered that there was no account in her name.
Ms. Leach asked plaintiff for her money back. He told her that he did not have it all but would pay her back in installments. Plaintiff then paid Ms. Leach $2,500 in cash. On February 19, 1998, plaintiff made an additional payment of $1,000 in cash and $400 by check.
Ms. Leach went to PNC Bank which issued the original $10,000 check and saw that her name had been forged on the back of the check with a handwritten notation "Pay to the order of Brian Morrison for purchase of Mazda 929." Ms. Leach then contacted the South Detectives of the Philadelphia Police Department and was interviewed by Detective Frank Straup.
On June 2, 1998, a search warrant was executed for Commerce Bank records which revealed that the forged $10,000 check was deposited into plain...
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