Nicholas Malfitano Jan. 15, 2016, 8:47am


PHILADELPHIA – An aspiring firefighter and former laborer for Philadelphia's Streets Department who filed a race discrimination suit against various city officials under Title VII of the Civil Rights Act of 1964, has now had that suit dismissed in federal court.

Judge Thomas N. O’Neill Jr. of the U.S. District Court for the Eastern District of Pennsylvania decided Wednesday that legal action brought by Jamar Kellam would be discharged – with the proviso that Kellam would have the opportunity to amend his claim regarding the applicable statute of limitations.

Kellam filed suit against Streets Commissioner David Perry, Human Resources Manager Kenneth Wilson, Inspector General Amy Kurland, Philadelphia Police Detectives Nancy Radaszkiewicz and Charles Figorski and the City of Philadelphia, alleging employment discrimination.

Kellam, an employee of the Streets Department for more than three years, applied for a position as a City firefighter. The application process’ background check revealed an outstanding arrest warrant from Colorado for a “Jamar Singleton," which city officials attributed to Kellam.

The plaintiff claimed he was not able to resolve the warrant, and was given the choice of resigning or being terminated from his position with the Streets Department in August 2013 – but also that his union president and Wilson told him that he could re-apply for his job in one year, provided he resolved the outstanding warrant. To date, Kellam has not been reinstated.

Kellam filed a charge of employment discrimination with the Equal Employment Opportunity Commission on Oct. 6, 2014, alleging race discrimination and retaliation on the basis of his African-American identity. On Oct. 15, 2014, the EEOC sent plaintiff a Right to Sue notice, closing its file on plaintiff’s case because he had not filed his charge within the required time limit.

The plaintiff filed his complaint on Dec. 17, 2014, arguing he was terminated for having an arrest warrant attributed to him, although the Human Resources department knows about “hundreds of employees who work within the City of Philadelphia of European descent that have lengthy criminal records and arrests records, as well as warrants in surrounding states.”

O’Neill provided rationale as to why Kellam’s Title VII discrimination claim could not be valid against the individual defendants in this case.

“Title VII only provides a cause of action against a plaintiff’s employer; individual employees may not be sued. Thus, plaintiff’s claims against individual defendants Perry, Wilson, Kurland, Radaszkiewicz and Figorski will be dismissed with prejudice,” O’Neill said.

O’Neill added Kellam’s EEOC claim was not filed in a timely manner, with his involuntary resignation occurring on Aug. 19, 2013 and his discrimination charge filing occurring on Oct. 6, 2014 – a total of 413 days after his termination. In order to seek relief under Title VII, the time limit for such an EEOC claim is 180 days.

“Although plaintiff does not discuss equitable tolling in his complaint, plaintiff’s late filing with the EEOC may be excused if his complaint alleges facts that meet any of the situations in which equitable tolling is appropriate,” O’Neill said. 

“However, plaintiff has not claimed the City misled him, actively or otherwise, about filing with the EEOC. Because plaintiff has failed to plead facts supporting any basis for equitably tolling the statute of limitations on his Title VII claims, his claims will be dismissed."

Though O’Neill dismissed Kellam’s complaint, he also provided criteria under which the plaintiff may amend it.

“Plaintiff may not re-assert his claims against the individually named defendants because they cannot be held liable under Title VII,” O’Neill said. “On plaintiff’s remaining Title VII claims against the City, his existing complaint does not support equitably tolling the statute of limitations.”

O’Neill added Kellam would be allowed to amend his complaint to argue why equitable tolling should apply, despite his late filing to the EEOC.

The plaintiff represented himself in this matter.

The defendants are represented by Diane A. Loebell and Nicole S. Morris of the City of Philadelphia’s Law and Solicitor Offices.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-07029

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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