Philly revenue department employee not unlawfully terminated, says appeals court

By Nicholas Malfitano | Oct 28, 2016

PHILADELPHIA – A federal appeals court upheld a motion of summary judgment in the case of a former Philadelphia Revenue Department customer service representative who claimed he was unlawfully terminated.

On Oct. 25, judges Thomas L. Ambro, Joseph A. Greenaway Jr. and Leonard I. Garth (who passed away prior to this ruling being issued) joined in on a per curiam decision affirming the aforementioned verdict of the U.S. District Court for the Eastern District of Pennsylvania, for the summary judgment motion against plaintiff William J. Peden.

Peden began working for the City of Philadelphia in May 2005, and almost immediately ran afoul of his employer due to attendance issues – which nearly cost him his job with the City on several occasions. However, District Council 33 of Local 696 (the Union) intervened each time and saved Peden from termination.

“In March 2009, the Union learned that, because of recurring attendance issues, Peden was again facing termination. The union negotiated six months of medical leave, which was set to expire in October 2009. At that time, however, Peden was still unable to return to work,” the Third Circuit said.

“The City refused to extend his leave and told him that his choices were to (1) return to work, (2) voluntarily resign, or (3) apply for non-service-connected disability. Peden was unable to return to work and was ineligible for disability because he had not completed 10 years of employment,” the appellate court added.

As a result, Bobby Davis, the Union’s president, recommended Peden resign. Under the Civil Service Regulations, resigning would allow Peden to be reinstated within one year of that resignation.

“Peden acknowledged that Davis advised him to resign. Davis testified that he had explained the reinstatement rules to Peden, but Peden denied that. Despite the fact that ‘everybody was telling him to resign,’ Peden wrote to the City and refused to resign. As a result, he was terminated,” the Third Circuit stated.

Following his termination, Peden allied with the Union to file an appeal to the Civil Service Commission. In a situation of this nature, the Union’s involvement after an appeal is filed is optional and the member must request that involvement – in this case, Davis and Peden disagreed as to whether that request was made. Davis believed the request wasn’t made known, while Peden countered that it was.

“Ultimately, on the hearing date, Peden appeared without accompaniment from the Union. He apparently informed the Commission that he did not wish to proceed, and his appeal was dismissed for want of prosecution. In his deposition, Peden complained that the Union ‘turned [its] back’ on him during ‘one of the hardest times in his life,” the Third Circuit said.

Peden alleged the Union had discriminated against him through its actions.

However, the trial court granted a summary judgment on behalf of the Union, ruling Peden “presented no evidence that the Union had discriminated against him due to his disability (as required to maintain a discrimination claim under the Americans with Disabilities Act) or his race, color, gender, religion, or national origin (as required to maintain a discrimination claim under Title VII).”

“The Court also noted that, to the extent Peden sought to present a retaliation claim under either statute, he had failed to show that he had ever engaged in a protected activity,” the appellate court said. Peden then appealed to the Third Circuit – who concurred with the trial court’s analysis of the case.

In the District Court, Peden focused mainly on his ADA claim. To make out a prima facie case of discrimination under the ADA, the plaintiff must show, among other things, that he has suffered an adverse action “as a result of discrimination.”

“Here, Peden presented no evidence to show that the Union’s failure to represent him on appeal was motivated by his disability. His speculation is not adequate to save his claim from summary judgment,” the Third Circuit said.

The appellate court said Peden’s Title VII claim “fared no better.”

“During his deposition, Peden specifically denied that the Union discriminated against him because of his race, color, religion, sex, or national origin. Therefore, the District Court did not err in granting judgment to the Union on this claim,” the Third Circuit said.

“Finally, to show retaliation under either the ADA or Title VII, Peden must show, among other things, that he engaged in protected activity. There is no evidence in the record that Peden engaged in any such activity. Accordingly, we will affirm the District Court’s judgment,” the Third Circuit stated.

The defendants are represented by Robert S. Goggin III and Voci R. Bennett of Keller & Goggin, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-3425

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-03045

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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