Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RUSSELL STEWART, Plaintiff, v. STATE OF DELAWARE, DEPARTMENT OF PUBLIC SAFETY, CAPITOL POLICE, Defendants ) ) ) ) ) ) ) ) ) ) )

Civ. No. 04-1200-SLR

DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

__/s/ Patricia D. Murphy________ Patricia D. Murphy (#3857) Deputy Attorney General 820 N. French Street Wilmington, DE 19801 (302) 577-8914 DATED: November 30, 2005

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TABLE OF CONTENTS Page Table of Citations . . . . . . . . . . . . . . . . . . . . Nature and Stage of the Proceedings Summary of the Argument . . . . . . . . . . . ii 1 2 3 5

. . . . . . . . . . . . . . . . .

Statement of Facts . . . . . . . . . . . . . . . . . . . . Argument . . . . . . . . . . . . . . . . . . . . . . . . . I. PLAINTIFF HAS FAILED TO PRODUCE FACTS SUFFICIENT TO DEFEAT SUMMARY JUDGMENT UNDER ARGUMENTS SET FORTH UNDER TITLE VII . . . . . . . . . . . . . .

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II.

ASSUMING, ARGUENDO, PLAINTIFF CAN MAKE A PRIMA FACIE CASE OF DISCRIMINATION, PLAINTIFF HAS FAILED TO PRODUCE DIRECT EVIDENCE OF DISCRIMINATION SUFFICENT TO DEFEAT SUMMARY JUDGMENT. . . . . . . . . . . 12 18

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF CITATIONS Page Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249 (1986) .. . . . . . . . . . . . . . . . Bullock v. Children's Hospital of Phila., 71 F. Supp. 2d 482, 485 (E.D. Pa. 1999). . . . . . . . . . Celotex Corp. v. Catarett, 477 U. S. 317,324,325 (1986) . . . . . . . . . . . . . . . Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F. 2d 509, 531 (3d Cir. 1992). . . . . . . . . . . . . 5, 6 16 5 15

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). . . . . . . . . . . . . . 13-15 King v. City of Philadelphia, Civ. A. No. 99-6303, 2002 WL 1277329 at *9 (E.D. Pa. June 4, 2002). . . . . . . . . . . . . . . . . .

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McDonell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). . . . . . . . . . . . . . . . 12, 13 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir.1999). . . . . . . . . . . . . . St. Mary's Honor Society v. Hicks, 509 U.S. 502, 506 n.1 (1983) . . . . . . . . . . . . . . . Sarullo v. United States Postal Service, 352 F.3d 789, 798 (3d Cir.2003). . . . . . . . . . . . . . Torre v. Casio, Inc., 42 F 3d 825, 829 (3d Cir. 1994). . . . . . . . . . . . . . Weldon v. Kraft, 896 F.2d 793, 797 (3d Cir.1990) . . . . . . . . . . . . . 6, 7 12 12 16 12

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NATURE AND STAGE OF THE PROCEEDINGS On or about March 27, 2003, Plaintiff filed a Charge of Discrimination with the Delaware Department of Labor. On March

31, 2004, the Delaware Department of Labor closed its file without finding that any discrimination occurred, and transferred the file to the EEOC at the request of the Plaintiff. On July 23, 2004, the EEOC issued a Right to Sue

letter, without finding that any discrimination occurred. On August 25, 2004, Plaintiff filed a Complaint Under Title VII of the Civil Rights Act of 1964, alleging that he suffered employment discrimination by the Defendants on March 3, 2003 when the Defendants failed to employ the Plaintiff. Plaintiff

alleges that this discriminatory conduct is with respect to his race and asks this Court to award all relief that is appropriate, including injunctive orders, damages, costs and attorney's fees. This is the Defendants' Motion for Summary Judgment on all counts.

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SUMMARY OF THE ARGUMENT 1. Summary judgment in favor of the Defendants is appropriate

as to all counts of the Complaint because the Plaintiff has not been able to produce sufficient evidence to make a prima facie case of discrimination. The Plaintiff cannot prove that he was

qualified for the position he sought, and he cannot prove that other employees not in his protected class were treated better than he.

2.

Summary judgment in favor of the Defendants is appropriate

as to all counts of the Complaint because even if it is assumed that the Plaintiff can make a prima facie case of discrimination, the Plaintiff cannot produce any direct evidence of discrimination necessary to meet his difficult burden of proof.

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STATEMENT OF FACTS In August of 2002, Plaintiff began working for the Defendants as a Capitol Police Security Guard. In early 2003,

Plaintiff applied for the position of Capitol Police Officer III. This would have been a promotion from the Plaintiff's The minimum qualifications required Possession of a

Security Guard position.

for the position of Police Officer III were:

high school diploma or GED certificate, Possession of a State of Delaware Council on Police Training Certificate or equivalent, Minimum of three years experience as a certified police officer, Knowledge of the principles and practices of training, and Ability to communicate effectively. See State of Delaware Class

Series Description at 3 (Appendix A-3). The Plaintiff applied for this position. The Plaintiff did

not possess a State of Delaware Council on Police Training Certificate at the time he applied for the position of Police Officer III. An "equivalent" certificate would be a certificate

from another State Police Academy held by an applicant that had worked in a certified police officer position within the past five years. See Deposition of Captain Hunt at 11, 16-22 Although the Plaintiff did have a

(Appendix A-7, A-8 to A-14).

certification from the State of Pennsylvania, he had not worked in a certified officer position since 1995, eight years before

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he applied for the Police Officer III position.

He therefore

did not possess an "equivalent" certificate to the Delaware Council on Police Training certificate and did not meet the minimum qualification requirements for this position at the time he applied. Because he was not qualified, the Plaintiff was

not offered an interview for the position of Police Officer III. Contrary to the allegations of the Plaintiff, it is not the case that only white employees were interviewed for this position of Police Officer III. offered to nine persons. In fact, interviews were

These interviews were offered to eight

males and one female, four African American and five Caucasian. Four interviewees failed to appear, and five people were interviewed. Of the five interviewed, one African American male

was interviewed, one African American female was interviewed and three Caucasian males were interviewed. See Defendants Answers

to Interrogatories, E-mail of March 21, 2003 (Appendix A-6) and Deposition of Captain Hunt at 33-35 (Appendix A-15 to A-17). On March 19, 2003, Plaintiff voluntarily resigned his position with the Capitol Police. See Plaintiff's resignation

letter dated March 19, 2003 (Appendix A-5).

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ARGUMENT I. PLAINTIFF HAS FAILED TO PRODUCE FACTS SUFFICIENT TO DEFEAT SUMMARY JUDGMENT UNDER ARGUMENTS SET FORTH UNDER TITLE VII A. Summary Judgment Legal Standard. Under a Rule 56 Summary Judgment motion, the moving party bears the initial responsibility of informing the Court of the basis for its motion, and identifying those portions of the materials, which it believes demonstrates the absence of a genuine issue of material fact. The moving party is not

required to negate the nonmovant's claim, but is only required to point out the lack of evidence supporting the nonmovant's position. This shifts the burden to the nonmovant to go beyond

the mere allegations or denials and designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catarett, 477 U. S. 317,324,325 (1986). In determining whether there is a triable dispute of material fact, the Court must construe all inferences from the underlying facts in favor of the nonmovant. However, the mere

existence of some evidence in support of nonmovant's position will not be sufficient to defeat the motion; there must be enough evidence to enable a jury to reasonably find for the nonmovant on that issue. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249 (1986). Thus, if the evidence is "merely

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colorable, or is not significantly probative," summary judgment may be granted. Id. Summary judgment is appropriate in this case because Plaintiff cannot establish a genuine issue of material fact that requires resolution by a jury. In this employment

discrimination case, the material issue is whether Plaintiff was denied the promotional opportunity in March of 2003 because he is African American. Plaintiff applied for a promotion to He did not meet the minimal

Capitol Police Officer III.

qualification requirements for this position and was not granted an interview therefore. case of discrimination. To establish a prima facie case of discrimination, a plaintiff must demonstrate that (1) he or she is a member of a protected class; (2) he or she is qualified for the sought after position; (3) he or she suffered an adverse employment action; and (4) similarly situated non-members of the protected class were treated more favorably than he or she, or the circumstances of his or her termination give rise to an inference of discrimination. Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir.1999). The Plaintiff cannot provide evidence The Plaintiff cannot make a prima facie

that he was qualified for the sought after position, nor can he provide evidence of any adverse employment action or that any

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non-member of the protected class was treated more favorably. Summary judgment on all counts is appropriate.

B.

Plaintiff has failed to produce evidence that he was qualified for the sought after position.

The Defendants concede that the Plaintiff is a member of a protected class. In order to prove a prima facie case of

discrimination under Title VII, the Plaintiff must next prove that he was qualified for the position he sought. supra. Pivirotto,

In January of 2003, the Plaintiff was employed by the

Defendants as a Security Officer with the Capitol Police. During this time, a Police Officer III position became available with Capitol Police. This would be a promotion from the The minimum

Plaintiff's position of Security Officer.

qualifications required for the position of Police Officer III were: Possession of a high school diploma or GED certificate,

Possession of a State of Delaware Council on Police Training Certificate or equivalent, Minimum of three years experience as a certified police officer, Knowledge of the principles and practices of training, and Ability to communicate effectively. See State of Delaware Class Series Description at 3 (Appendix A3).

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The Plaintiff applied for this position.1

The Plaintiff did

not possess a State of Delaware Council on Police Training Certificate at the time he applied for the position of Police Officer III. An "equivalent" certificate would be a certificate

from another State Police Academy held by an applicant that had worked in a certified police officer position within the past five years. See Deposition of Captain Hunt at 11, 16-22 Although the Plaintiff did have a

(Appendix A-7, A-8 to A-14).

certification from the State of Pennsylvania, he had not worked in a certified officer position since 1995, eight years before he applied for the Police Officer III position. He therefore

did not meet the minimum qualification requirements for this position at the time he applied. The Plaintiff did receive a letter from Human Resources, indicating that he was qualified for the position of Police Officer III. This letter was sent by a Human Resources This letter was sent in error, as the

technician, Taja Jones.

Plaintiff did not possess the minimum qualifications necessary for the position. Ms. Jones testified at her deposition that

she sent that letter based on her evaluation of the Plaintiff's application and resume, cross-referenced with a qualification sheet she reviewed. See Deposition of Taja Jones at 5 (Appendix

Although his Complaint alleges discrimination in failing to employ the Plaintiff, it is assumed that the allegation is actually failure to promote.

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A-18).

However, Ms. Jones did not have the Council on Police See Id.

Training certification requirements available to her.

Further, Ms. Jones was not familiar with the eligibility requirements regarding how long an applicant could be not working as a certified officer, and still be considered a certified officer. A-20). See Deposition of Taja Jones at 13 (Appendix

The ultimate decision-maker on issues of whether or not

an applicant met the minimum requirements of a Police Officer position was Captain Hunt. (Appendix A-19). See Deposition of Taja Jones at 11

In this case, as soon as Captain Hunt became

aware that Human Resources erroneously informed the Plaintiff that he was qualified, Captain Hunt alerted them that this was a mistake, and the Plaintiff was not qualified because he had been out of certified police work for too long. 14-16 (Appendix A-21 to A-23). See Taja Jones at

As soon as Human Resources

learned of their mistake, they sent the Plaintiff a second letter, indicating that he was not qualified for the position. See Taja Jones at 15 (Appendix A-22).

C.

Plaintiff has failed to produce evidence that nonmembers of his protected class were treated more favorably than he

Including the Plaintiff's, Capitol Police collected thirtyone applications for the position of Capitol Police Officer III from July 1, 2002 until June 30, 2003. Of these applicants, 12

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men reported they were African American, 2 men reported they were Hispanic, 14 men reported they were Caucasian, and one man reported his race as "Other." Of these same thirty-one

applicants, one female indicated she was African American and one female indicated she was Caucasian. to Interrogatories. On or about March 20, 2003, interviews were offered to nine applicants for the position of Capitol Police Officer III. These interviews were offered to eight males and one female, four African American and five Caucasian. Four interviewees Of the five See Defendants' Answers

failed to appear, and five people were interviewed. applicants interviewed, one African American male was

interviewed, one African American female was interviewed and three Caucasian males were interviewed. See Defendants' Answers

to Interrogatories, E-mail of March 21, 2003 (Appendix A-6) and Deposition of Captain Hunt at 33-35 (Appendix A-15 to A-17). The Plaintiff will not be able to make a prima facie showing that he was not granted an interview due to his race. Of the

nine people offered interviews, four reported their race as African American, the same as the Plaintiff's. Of the five

interviews that went forward, two interviewees reported their race as African American. Contrary to the claim of the

Plaintiff that only white employees were granted interviews,

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four African Americans were offered interviews, and two of these applicants reported for interviews. When asked in discovery to identify any non-member of his protected class that was treated more favorably than he, the Plaintiff identified only Darryl Hervey, another African American male. See Plaintiff's Answers to Interrogatories. The

Plaintiff has not been able to provide the name of a single, non-African American, employee who was treated more favorably than he. The Plaintiff is not able to make the requisite prima

facie case of discrimination.

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II.

ASSUMING, ARGUENDO, PLAINTIFF CAN MAKE A PRIMA FACIE CASE OF DISCRIMINATION, PLAINTIFF HAS FAILED TO PRODUCE DIRECT EVIDENCE OF DISCRIMINATION SUFFICENT TO DEFEAT SUMMARY JUDGMENT The United States Supreme Court in McDonell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973), set forth a three-step burden shifting analysis for Title VII racial discrimination claims. See St. Mary's Honor Society v. Hicks, 509 U.S. 502, 506 n.1 (1983) (stating that the McDonnell Douglas framework applies to both Title VII and §1983 discrimination claims). First, the plaintiff has the initial burden of establishing a prima facie case of racial discrimination. See McDonnell Douglas, 411 U.S. at 802. This is done by showing that the plaintiff: 1) is a member of a protected class; 2) was qualified for the position; 3) suffered an adverse job action; and 4) was treated differently than employees who are not members of his protected class. King v. City of Philadelphia, Civ. A. No. 99-6303, 2002 WL 1277329 at *9 (E.D. Pa. June 4, 2002) (applying the McDonell Douglas test to a race discrimination claim by a police officer who was terminated from employment), aff'd by 2003 WL 1705967 (3d Cir. Apr. 1, 2003); see also Weldon v. Kraft, 896 F.2d 793, 797 (3d Cir.1990). Whether the plaintiff has established a prima facie case of discrimination is a question of law for the court. Sarullo v. United States Postal Service, 352 F.3d 789, 798 (3d Cir.2003).

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If the plaintiff establishes a prima facie case of racial discrimination, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the employment decision. McDonnell Douglas, 411 U.S. at 802. "The employer satisfies its burden of production by introducing evidence which, if taken as true, would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). If the employer meets its "relatively light" burden by articulating a legitimate reason for the employment decision, the burden shifts back to the plaintiff to show "by a preponderance of the evidence" that the nondiscriminatory reason offered by the employer was a mere pretext for racial discrimination. See Id. (citing McDonnell Douglas, 411 U.S. at 802).

A.

Legal Standard for Pretext Racial Discrimination Under Fuentes v. Perskie Plaintiff has asserted a racial discrimination claim

against his employer.

Assuming that the Plaintiff can prove

that he did not receive an interview because of his protected status, the presumption of discrimination will attach and shift the burden to the employer. The employer satisfies its burden

of production by introducing evidence which, taken as true,

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would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision. Fuentes v. Perskie, 32 F.3d 759,763(3d Cir.1994). The employer need not

prove that the tendered reasons actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with plaintiff. Once the employer answers its relatively light

burden by articulating the legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff who must show by a preponderance of the evidence that the employer's explanation is pretext for discrimination. Id. 763. The Court in Fuentes established the standards necessary for Plaintiff to withstand summary judgment after the employer has proffered a legitimate non-discriminatory reason for its employment action. Plaintiff generally must submit evidence,

which casts sufficient doubt upon each proffered reason so that the fact finder could reasonably conclude that each reason was a fabrication. Alternatively, Plaintiff must submit evidence,

which allows the fact finder to infer that discrimination was more likely than not a motivation or determinative cause of the adverse employment action. Id. 760 To discredit the employer's proffered reasons, plaintiff cannot simply show that the employer's decision was wrong or

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mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer's decision not whether the employer is wise, shrewd, prudent or competent. While this standard places a difficult burden on the plaintiff, it arises from the inherent tension between the goal of all discrimination law and our society's commitment to free decision making by the private sector in economic affairs. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F. 2d 509, 531 (3d Cir. 1992). The standard set forth in Fuentes allows a plaintiff in a discrimination case to maintain a cause of action through appropriate discovery stages. This affords plaintiff an opportunity to examine the employer's proffered reasons for the employment decision which adversely affected him and permits plaintiff a meaningful opportunity to develop the evidence necessary to defeat a summary judgment motion. However, the Court distinguished the burdens of parties in a discrimination case by referring to the employer's burden as light and plaintiff's burden as difficult. Fuentes at 763; Ezold, supra.

B.

Plaintiff Has Failed to Prove Direct Evidence of Discrimination

Plaintiff alleges direct evidence of racial discrimination in the decision not to grant him an interview for the position of Police Officer III. In order for evidence to be direct

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evidence, it must prove the existence of the fact in issue without inference or presumption. 825, 829 (3d Cir. 1994). Torre v. Casio, Inc., 42 F 3d

Direct evidence is overt or explicit

evidence which directly reflects the discriminatory animus by the decision maker. Bullock v. Children's Hospital of Phila., 71 F. Supp. 2d 482, 485 (E.D. Pa. 1999). Plaintiff has alleged

that he was qualified for the position of Police Officer III. However, he was not qualified as Captain Hunt explained during his deposition. Plaintiff has alleged that Officer Booker will

testify that no African Americans were interviewed for the position of Police Officer III. However, the evidence shows

that four African Americans were offered interviews, and two African Americans were interviewed for the position. Further,

Officer Booker was not involved in the decision to grant interviews to particular applicants and not others. Officer

Booker was not on the selection committee that conducted the interviews, nor was he in a supervisory position over any of the applicants at the time the interview selection process was conducted. Plaintiff's "direct evidence" will not prove the

fact at issue, which is racial discrimination or discriminatory animus because the Plaintiff is African American. The Plaintiff fails to provide any facts to prove that the employer's legitimate non-discriminatory reason for the employment decision was pretextual. The employer did not grant

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the Plaintiff an interview because he did not possess the minimum qualifications required for the position. The employer

did offer interviews to four African American applicants, and two African American applicants reported for their interviews. The Plaintiff has not been able to produce any direct evidence of discrimination to meet his difficult burden.

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CONCLUSION Having reviewed the record for evidence of racial discrimination, the question presented to the Court is first whether the Plaintiff can prove that he was qualified for the position for which applied. Next, the Court must find that the

Plaintiff can prove that others, not in his protected class, were treated better than he. Finally, the Court must find that

the Plaintiff can provide facts sufficient to create a genuine issue of material fact to defeat the employer's proffered reasons for not granting him an interview. Despite over five

months of discovery, three depositions and countless interrogatories and requests for production, the Plaintiff has not come up with any direct evidence of discrimination. Summary

judgment in favor of Defendants on all claims is appropriate.

__/s/ Patricia D. Murphy________ Patricia D. Murphy (#3857) Deputy Attorney General 820 N. French Street Wilmington, DE 19801 (302) 577-8914

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