Tomaszewski v. City of Phila.

• Decision Date: 14 May 2020
• Docket Number: CIVIL ACTION NO. 17-4675
• Citation: 460 F.Supp.3d 577
• Parties: Robert TOMASZEWSKI, Plaintiff, v. CITY OF PHILADELPHIA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

460 F.Supp.3d 577

Robert TOMASZEWSKI, Plaintiff,

v.CITY OF PHILADELPHIA, Defendant.

CIVIL ACTION NO. 17-4675

United States District Court, E.D. Pennsylvania.

Signed May 14, 2020

Filed May 15, 2020

Laura Carlin Mattiacci, Lane Schiff, Console Mattiacci Law, LLC, Philadelphia, PA, for Plaintiff.

Alan B. Epstein, Jennifer Myers Chalal, Spector Gadon & Rosen, PC, Philadelphia, PA, for Defendant.

MEMORANDUM

DuBois, J.

I. INTRODUCTION

This is an employment discrimination case arising out of the hiring of a new Commissioner of Prisons by the City of Philadelphia after the election of Mayor James Kenney in 2015. Plaintiff, a Caucasian male who previously served as a Deputy Commissioner in the Philadelphia Department of Prisons ("PDP"), applied for the Commissioner position after the former Commissioner announced his retirement. Plaintiff alleges that defendant, the City of Philadelphia ("the City"), considered his race and gender based in part on a discriminatory diversity initiative when it failed to promote him to Commissioner and ultimately appointed an African American woman to that position. Plaintiff further asserts that, after complaining about the City's purportedly discriminatory conduct, he was subjected to retaliation.

Presently before the Court is a motion for partial summary judgment filed by plaintiff and a motion for summary judgment filed by the City. For the reasons that follow, the Court denies plaintiff's motion for partial summary judgment and grants the City's motion for summary judgment.

II. BACKGROUND¹

A. Start of the Kenney Administration and Plaintiff's Application for the Commissioner of Prisons Position

James Kenney was elected Mayor of Philadelphia on November 3, 2015; he was sworn into office on January 4, 2016. Def.’s Stmt. Undisputed Material Fact ("Def.’s SUMF") ¶ 12. During the period after Mayor Kenney was elected but before he was officially sworn in, the Kenney Administration established the Transition Committee for Criminal Justice and Public Safety to advise the Administration on criminal justice and public safety issues and to make recommendations on personnel hiring for high-level public safety roles ("Public Safety Transition Committee" or "the Committee"). Id. ¶¶ 38–39. The Committee was composed of then-Commissioner Lou Giorla and multiple community members, including Minister Rodney Muhammad, the head of the Philadelphia chapter of the NAACP; the court administrator for the First Judicial District of Pennsylvania; two criminal defense and civil rights attorneys; the dean of a local law school; and a former Philadelphia City Solicitor. Id. ¶ 41.

Shortly after the election, Giorla notified the Mayor-elect that he would be retiring from the PDP. Id. ¶ 35. The Kenney Administration thereafter directed the Public Safety Transition Committee to interview and recommend candidates for the Commissioner position, from which recommendations the Administration would determine who should advance in the application process. Id. ¶ 43. Various City officials were involved in the hiring process, including Jane Slusser, Mayor Kenney's then-Chief of Staff; Brian Abernathy, then-First Deputy Managing Director, who oversaw the operations of the City's public safety-related departments, including PDP; and Michael DiBerardinis, then-Managing Director of the City. Id. ¶¶ 13–17.

Slusser, Abernathy, and Giorla testified that the Kenney Administration sought a candidate for Commissioner who could implement the Mayor-elect's vision for criminal justice reform. Id. ¶ 66–68. Specifically, the City states that it was seeking someone with strong experience in social services, behavioral health, and rehabilitation. Id.

Plaintiff began working for the PDP in 1984 as a correctional officer and, after serving in multiple roles, was named the Deputy Commissioner of Administration in 2005. Id. ¶¶ 25–29; Pl.’s Stmt. Material Facts Not in Dispute Resp. Def.’s Mot. Summ. J. ("Pl.’s SUMF") ¶¶ 2–10. He submitted his application for the Commissioner position in early December 2015 through the transition website established by the Kenney Administration. Def.’s SUMF ¶ 44.

On December 9, 2015, the Public Safety Transition Committee interviewed plaintiff, Rodney Brockenbrough, William Crowley, and Michael Resnick, who at that time was the Director of Public Safety.² Id. ¶¶ 36, 45–46; Pl.’s SUMF ¶¶ 51–52. After the interviews, the Committee recommended that Resnick, a Caucasian male, and Brockenbrough, an African American male, should advance to the next round of interviews, but that plaintiff and Crowley should not advance. Def.’s SUMF ¶¶ 49–50; Pl.’s SUMF ¶ 53. A December 10, 2015 e-mail summarizing the Committee's deliberations recommended, inter alia , plaintiff as a "[p]otential Deputy," but "[n]ot as commissioner." Def.’s SUMF ¶ 50; Def.’s Mot. Summ. J. ("Def.’s Mot.") Ex. 25. In late December 2015, the Kenney Administration notified plaintiff that he was no longer under consideration for the Commissioner position. Def.’s SUMF ¶ 62.

B. The City Conducts Second Round of Interviews and Blanche Carney is Recommended

Two days after plaintiff was interviewed, on December 11, 2015, Slusser and two other Kenney Administration officials sent an update on hiring to Abernathy and DiBerardinis. Id. ¶ 65; Def.’s Mot. Ex. 27. The memo stated, inter alia , that there were "no clear strong candidates" for the Commissioner position and that a national search was now in its early stages. Def.’s Mot. Ex. 27. As a result, in January 2016, the City appointed Resnick as Acting Commissioner on an interim basis while the City continued its search. Def.’s SUMF ¶ 69. Abernathy testified that the Public Safety Transition Committee did not conduct any additional interviews after Mayor Kenney was inaugurated on January 4, 2016. Id. ; Def.’s Mot. Ex. 9 ("Abernathy Dep. I") 112:114–113:3.

Between early January 2016 and February 12, 2016, with the support of an outside recruiter, Abernathy, Giorla, and another City official, Julie Wertheimer, interviewed at least two new candidates, including Darcella Sessomes.³ Def.’s SUMF ¶ 73; Pl.’s SUMF ¶ 61; Def.’s Mot. Ex. 29. Sessomes, an African American female, was an Assistant Commissioner for the New Jersey Department of Corrections. Def.’s SUMF ¶ 75; Def.’s Mot. Ex. 29. Based on these interviews, Abernathy recommended that Mayor Kenney and DiBerardinis interview Sessomes and Resnick as finalists for the Commissioner role. Def.’s SUMF ¶ 79; Def.’s Mot. Ex. 30; Pl.’s SUMF ¶ 63.

After making the recommendations, Abernathy arranged for Resnick to take Sessomes on a tour of PDP facilities on March 7, 2016. Def.’s SUMF ¶ 80; Pl.’s SUMF ¶ 66. Resnick did not approve of Sessomes's candidacy because he thought she was unqualified and unfamiliar with the Philadelphia prison system. Def.’s SUMF ¶¶ 81–82; Pl.’s SUMF ¶ 67. After the tour, Resnick shared his concerns about Sessomes with Abernathy and told him, among other things, "If you want to hire a black female, we have one and her name is Blanche Carney." Def.’s SUMF ¶ 86; Pl.’s SUMF ¶ 75; Def. Ex. 15 ("Resnick Dep.") 86:13-18. At the time, Carney was the Deputy Commissioner for Restorative and Transitional Services. Def.’s SUMF ¶ 84. She had worked in the Department of Prisons since 1995—first as a social worker, then as social work supervisor and human services program administrator before being named Deputy Commissioner in 2014. Id. ¶ 108. In response to Resnick's recommendation of Carney, Abernathy stated, inter alia , "Oh, that's a great idea. Why didn't I think of that?" Id. ¶ 90.

Resnick testified that he recommended Carney, in part, because Lorenzo North, the president of the correctional officers union, had previously told him that the City wanted to appoint a black female to the Commissioner position. Id. ¶ 87; Pl.’s SUMF ¶ 65; Resnick Dep. 49:18–50:22. There is no evidence that North obtained this information from City officials. Def.’s SUMF ¶ 88; Resnick Dep. 50:23–51:9, 131:8–132:21.

Based on Resnick's recommendation, Abernathy informed Slusser, the Mayor's Chief of Staff, about Carney and her potential candidacy. Def.’s SUMF ¶¶ 100–01. In an e-mail dated March 8, 2016, Abernathy wrote to Slusser:

Had a "discussion" with Resnick after yesterday's tour. The one issue raised that I didn't have a good response for was why we haven't considered Blanche Carney – she's a current Deputy. African American woman. Well respected in the system. Similar experience to Darcella. Can we discuss?

Id. ¶¶ 100–01; Def.’s Mot. Ex. 33; Pl.’s SUMF ¶ 82. Abernathy thereafter contacted Carney to determine if she would be interested in applying for the Commissioner position, and approximately three days later, she confirmed her interest and submitted her resume. Def.’s SUMF ¶¶ 104, 111; Pl.’s SUMF ¶¶ 85–86; Carney Dep. 42:11–43:5, 45:12–14.

In late March 2016, Carney was interviewed by Abernathy, Giorla, and Wertheimer, after which Abernathy recommended her for Mayor Kenney's consideration. Def.’s SUMF ¶¶ 113, 116–17; Pl.’s SUMF ¶ 87–88; Abernathy Dep. 165:24–166:1. Ultimately, Mayor Kenney approved the selection of Carney, who soon thereafter accepted the Commissioner position. Def.’s SUMF ¶ 126. On April 12, 2016, Mayor Kenney announced the selection of Carney and stated that he was "very excited it was a woman we finally picked." Id. ¶ 127; Def.’s Mot. Ex. 37; Pl.’s SUMF ¶ 96.

Plaintiff testified that, around this time, in April 2016, Resnick told him that Minister Muhammad—a member of the Public Safety Transition Committee—and the NAACP pressured the Kenney Administration to appoint an African American female as Commissioner. Def.’s SUMF ¶¶ 58–59; Pl.’s Resp. Def.’s SUMF ¶¶ 58–59; Tomaszewski Dep. 79:24–80:22. According to plaintiff, on an unspecified date, North told him that "the City was looking to hire a black female for Prisons Commissioner." Id. at 19:4–10. Plaintiff also testified that he "believe[d] [Muhammad is] the one that made the suggestion that the Commissioner of...