PHILADELPHIA – The City of Philadelphia has motioned to dismiss a discrimination lawsuit brought by a Philadelphia police lieutenant who claimed he faced disparate treatment prior to dismissal for sexual harassment, arguing that he had not stated plausible claims and is thus not entitled to relief.
Marc Hayes of Perkasie first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 23 versus the City of Philadelphia.
Hayes said the police department stressed “changing the culture” to make it more diverse in the wake of George Floyd’s murder by Minneapolis, Minnesota police officers in 2020.
“The City of Philadelphia treated plaintiff disparately or pre-textually in the terms and conditions of his employment compared with the way non-Caucasian employees who were accused of engaging in the same, similar or worse conduct were treated,” the suit said.
Hayes was fired for alleged sexual harassment of two female police officers while he was a lieutenant and scheduled to be promoted to captain. Hayes had sent texts to the officers with videos of bestiality that depicted a dog performing oral sex on a woman in August 2018.
As a result of his grievance with the process, Hayes was reinstated – a decision affirmed by the Commonwealth Court earlier this year. His civil suit noted a Black inspector accused of sexually assaulting three female police officers earned a favorable ruling in arbitration with Philadelphia and the City did not appeal the arbitrator’s decision, though it is still appealing Hayes’ case to the state Supreme Court.
UPDATE
The City countered with a motion to dismiss on April 21, charging that Hayes had not properly pled his claims of disparate and discriminatory treatment and that they are insufficient.
“Plaintiff alleges that the only reason the City of Philadelphia continues to appeal the decision to reinstate him is to further [former] Commissioner [Danielle] Outlaw’s agenda of creating a more diverse police department through its disciplinary process. This is insufficient to state a claim for relief. First, although Plaintiff claims that ‘the City of Philadelphia’ continues to appeal the decision to reinstate him, he has not identified a person acting under the color of state law who deprived him of a right. At the time plaintiff filed his complaint on Feb. 24, 2024, Danielle Outlaw was not the Commissioner of the Philadelphia Police Department. She resigned, effective Sept. 22, 2023. Plaintiff has not identified any other person who deprived him of a right. As such, plaintiff’s theory that the only reason the City of Philadelphia continues to appeal the decision to reinstate his employment is to further former Commissioner Outlaw’s agenda of creating a more diverse police department through its disciplinary process is merely an allegation and not based in fact. Such a conclusory allegation fails and is not entitled to any presumption of truth. Although a plaintiff’s allegations are ordinarily entitled to a presumption of truth, this ‘presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.’ This plausibility determination is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense,” the motion stated, in part.
“Moreover, plaintiff fails to plead facts demonstrating that he is similarly-situated to the African-American members of the Philadelphia Police Department he alleges received preferential treatment on the basis of their race – Holmes and Montgomery. Plaintiff fails to allege that these Black officers were of the same rank as he, or that they violated the same provisions of the Police Department’s Disciplinary Code, that Commissioner Outlaw made the decision to terminate each of them, that their termination was based on similar conduct, that Officer Montgomery directed his actions toward female members of the department and that three arbitration decisions were issued by the same arbitrator and based on the same rationale as Hayes’, the latter which is certainly relevant to the reasons for an appeal. As such, plaintiff’s allegations concerning the appeal of the arbitrator’s decision fails to support race discrimination claim under Section 1983.”
The City also argued that Hayes failed to state a claim under Monell.
“According to his own pleadings, the Philadelphia Police Department dismissed each of the members he mentions, all three members availed themselves of the grievance and arbitration process, and all three were awarded reinstatement by arbitrators. These facts do not support his claim of a ‘pattern of behavior that was part of a policy of the PPD, as implemented by Commissioner Outlaw, which was specifically designed to remove Caucasian police officers by treating them in a different manner than non-Caucasian police officers and denying them their procedural and substantive due process rights.’ Thus, Count I against the City must be dismissed,” the motion continued.
“Count II must be dismissed with prejudice because plaintiff cannot state an adequate procedural due process claim. In fact, plaintiff has pled facts demonstrating that he is protected by a collective bargaining agreement that provides for detailed post-deprivation procedures and that he availed himself of that process. Plaintiff is not entitled to any further process, and his claim must be dismissed with prejudice. Although the City concedes that the collective bargaining agreement between the parties does create a property interest in plaintiff’s employment, plaintiff received all the process to which he was due, and, therefore, his claim fails as a matter of law. Even where a property right exists, the Due Process clause is not violated if there is an ‘opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ In this case, plaintiff is a member of a union who, on his behalf, agreed to an extensive post-deprivation grievance procedure, which includes the right to a hearing before a neutral arbitrator. The U.S. Court of Appeals for the Third Circuit has held that if grievance and arbitration procedures are in place for a public employee, those procedures satisfy due process requirements, even if a hearing or initial decisions made by an employer are inherently biased. By his own pleadings, plaintiff admits he engaged in the grievance process. Therefore, as a matter of law, plaintiff cannot maintain his procedural due process claim, and Claim II must be dismissed with prejudice.”
The motion concluded by arguing that Hayes had not demonstrated that his substantive due process rights were violated.
“First, plaintiff must establish that his right to employment is protected by the due process clause. Substantive due process protects only ‘fundamental’ rights from government conduct that ‘shocks the conscience. Therefore, as a threshold matter, plaintiff’s substantive due process challenge must fail because he does not have a fundamental right to his employment. Moreover, as discussed above, because plaintiff received the procedural due process he was entitled to, he has failed to state a claim against the City for a violation of his due process rights. Because plaintiff has not established a violation of his due process rights, Counts II and III must be dismissed with prejudice,” the motion said.
For counts of violating 42 U.S.C. Sections 1981-1983, violating procedural due process rights and violating substantive due process rights, the plaintiff is seeking all equitable damages including reinstatement of his position as a Philadelphia Police Officer, front pay, lost benefits and profits, compensatory, consequential and punitive damages, pre- and post-judgment interest in the highest lawful amount, reasonable attorney’s fees, together with his costs and such other and further relief as the Court determines justice and equity so require.
The plaintiff is represented by Steven C. Feinstein of Feinstein & Fioravanti, in Philadelphia.
The defendant is represented by Nicole S. Morris, Renee Garcia and Anne Taylor of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-00797
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com