Nicholas Malfitano Mar. 21, 2016, 2:14pm


PHILADELPHIA – A federal court has determined a Fire Captain and former candidate for a Fire Battalion Chief position in the Philadelphia Fire Department was not the target of discrimination.

Judge Cynthia M. Rufe ruled March 14 that Lawrence Boyle had not provided evidence to properly state a claim that the fire department discriminated against him on the bases of race, age and gender in not promoting him to Fire Battalion Chief in 2012, and denied him equal protection under the law.

Boyle planned to apply for the battalion chief position in the fall of 2012 along with four other candidates, but all five had problems with the online application system. After Boyle complained to his Union representation, he said he and the other candidates were arranged to take the eligibility list test in writing, instead.

However, Boyle said he was then informed that “only online examinations would be considered and therefore the written examinations were not reviewed or graded.” Just one week later, all five candidates were removed from the eligibility list. On Sept. 18, 2012, Boyle was sent an e-mail from his union, discussing the problems with the process. Boyle maintained he was treated less favorably in the online application process on the bases of his race, age and gender.

Rufe said Boyle failed to exhaust administrative remedies with agencies like the Equal Employment Opportunity Commission (EEOC), with respect to his discrimination claims. Boyle was required to report the claims within 180 days of the alleged discriminatory conduct, or within 300 days if a charge was cross-filed with a state agency.

Boyle asserted he had an interview with the EEOC on Nov. 9, 2013 and the charge was filed on Dec. 14, 2013, since he did not learn about the alleged discrimination until 2013, when he discovered the other candidates were given assistance with completing the online application process and he was not.

But, Rufe pointed to precedent in the U.S. Court of Appeals for the Third Circuit that equitable tolling begins with “a claim [which] accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong.” Therefore, Rufe termed Boyle’s claims as “untimely”.

Rufe further opined Boyle had failed to state a claim upon which relief could be granted in this matter, as his charges were based on a mere inference or speculation of discrimination and not plausible evidence.

“Specifically, plaintiff alleges disparate treatment afforded to applicants for an entirely different position, the July 2013 promotion to Fire Paramedic Captain, who were given assistance with the online application,” Rufe said. “But according to plaintiff’s charge of discrimination, applicants of different races and genders were given assistance in completing the application, and so even to the extent that assistance may have been given to applicants for a different position, there is no plausible allegation of discrimination.”

The remainder of her ruling notwithstanding, Rufe did extend to Boyle an opportunity to resolve the pleading deficiencies associated with his amended complaint, and file another iteration.

“In this case, plaintiff has already amended once as of right, in response to defendants’ first motion to dismiss. Plaintiff has not requested leave to amend a second time,” Rufe said.

“However, the Court will grant plaintiff the opportunity to file a motion for leave to file a second amended complaint in the event that he can overcome the pleading deficiencies identified herein and allege that he timely exhausted administrative remedies,” Rufe concluded.

The plaintiff is represented by Thomas D. Kenny of KMKM Law Group, in Philadelphia.

The defendant is represented by Nicole S. Morris of the City of Philadelphia’s Solicitor’s Office and Christian Kerstetter of the City of Philadelphia’s Labor & Employment Unit.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00195

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

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