PHILADELPHIA – Motions for summary judgment will soon be decided in a case pitting the City of Philadelphia’s former Chief Information Officer against the City and involving alleged retaliation, in the U.S. District Court for the Eastern District of Pennsylvania.
According to plaintiff Charles Brennan’s lawsuit, he’s convinced the City of Philadelphia fired him because he spoke out about racial discrimination in hiring and alleged violations of public contract award requirements that he said were going on behind the scenes.
As a result, Brennan sued the City, Mayor Jim Kenney, Chief Administrative Officer Christine Derenick-Lopez and Chief of Staff Jane Slusser in April 2018.
Just months after Kenney’s election, Brennan was hired to manage Philadelphia’s technology matters in January 2016, where Derenick-Lopez was his supervisor. Prior to his termination in January 2018, Brennan accused the City of racial discrimination in its hiring processes, not properly complying with public bidding process requirements and not acting on a contractor’s missed deadlines. He also called out the City for asking him to attend gender sensitivity training amid his complaints.
During his time there, Brennan often met with the City’s Chief Diversity Officer, Nolan Atkinson, to create initiatives to diversify the office makeup. Atkinson allegedly said the staff was “too white” and wanted to bring on more African-Americans and Hispanics. Brennan complained to Derenick-Lopez, who, by requirement, relayed the issues to Kenney and Slusser.
Brennan also alleged there were times when Derenick-Lopez would say, “It was a shame the best candidate was white, because they needed to hire an African-American for the position,” according to the decision.
Along with hiring processes, Brennan took issue with a contract the City had with Axon Enterprises Inc. The agreement was to buy 4,000 body cameras for patrol officers.
Brennan said the agreement violated public bidding process requirements, stating the City didn’t do its due diligence and look at other options. He challenged the agreement, but after he was allegedly “warned” about speaking up, the City moved forward with the $12 million contract.
Brennan also called out the City in its dealings with Comcast. The City and Comcast had a contract that the cable provider would perform certain jobs, like fixing hanging wires, within a certain period of time. The agreement also said that if Comcast didn’t make the deadlines, the City would be owed compensation.
Comcast said it followed the deadlines, but Brennan said the company missed multiple deadlines. He said he was concerned the City would miss out on thousands of dollars in compensation and told Derenick-Lopez about it during a weekly meeting.
Derenick-Lopez allegedly told him to “take it easy” and “to not upset Comcast, and to go along with its ‘denial of access’ designations,” according to the lawsuit.
Lastly, Brennan said he was retaliated against for complaining about requests for him to go to sensitivity training. Derenick-Lopez informed Brennan in 2017 that he “was insensitive to gender in the workplace,” and referenced previous comments he had made. Brennan said this was unfair and complained about being asked to go to training.
The City offered Brennan a severance package after his termination, but he would have to forfeit any discrimination and retaliation claims and declined the package.
On May 1, he filed papers requesting the court to compel Kenney’s deposition, but it refused and denied Brennan’s motion last July, though it offered Brennan a chance to file a second motion to compel, if he still believes Kenney’s deposition is needed.
Now, motions for summary judgment are on the table – with the City’s having been filed on Oct. 10.
In it, the City asserted, among other arguments, that Brennan’s retaliation claims fail because “he has not produced evidence to rebut defendants’ legitimate non-retaliatory reason for terminating his employment – that Mr. Brennan refused to attend training to improve his communication skills” and that he failed to show it was connected to any protected activity.
“Mr. Brennan was speaking within the scope of his duties – not as a private citizen – when he opposed Mr. Atkinson’s methods for implementing the City’s diversity initiative, the City’s methods in procuring body-worn cameras, or the City’s directives related to the Comcast franchise agreement breach negotiations and, therefore, his speech was not protected,” the City said.
The City further argued that Brennan didn’t prove the allegedly-discriminatory practices violated 42 U.S.C. Section 1981.
“Simply put, evidence that the City has aggressive diversity goals, and bluntly communicated those goals, is not evidence that the City intended for its supervisors to meet those goals by illegally terminating or refusing to hire anyone based on race, or that any City hiring manager preferentially hired minorities,” the City’s motion said.
“While Mr. Atkinson’s alleged remarks about the lack of diversity in Mr. Brennan’s department might have been insensitive, Mr. Atkinson made no suggestion that Mr. Brennan must take any action other than the legal actions recommended by the City’s diversity initiative, and Mr. Brennan concedes that he never hired employees based on race.”
Finally, the City argued that Brennan’s claims under the Pennsylvania Whistleblower Law failed, because, in part, “he has failed to identify concrete evidence –as required by the PWL – linking his termination to any report of waste or wrongdoing, and because defendants have proffered a separate and legitimate reason for his termination.”
Brennan filed a response to the summary judgment motion on Nov. 8, countering that the case “is about retaliation, plain and simple”, and that his voicing of concerns about discrimination, waste, wrongdoing and illegalities led to him being pushed out of government service after a 32 year-career.
“Defendants’ discriminatory culture around diverse hiring/retention, their practice of instructing Mr. Brennan and others to consider applicants’ race in making hiring decisions, their considering race in making hiring decisions themselves, their scolding and blaming him for making complaints about the sham RFP, their extremely hostile and antagonistic treatment of Mr. Brennan in response to his complaints about Atkinson’s discriminatory comments, the fraudulent RFP and his refusal to ‘take it easy on Comcast’, the extremely suspicious timing of events and the disputed, contradictory and inconsistent reasons for his termination demonstrate that Mr. Brennan’s termination was retaliatory and unlawful,” Brennan’s response read, in part.
Brennan reiterated the truth to his claims and said of the defendants’ arguments that they are “disputed, contradictory, inconsistent and disparate compared to their treatment of other similarly-situated employees.”
“Predictably but nonetheless inappropriate, defendants’ motion fails to construe the facts in the light most favorable to Mr. Brennan, makes conclusory and unsupported assertions and ignores the abundant factual disputes that make summary judgment completely unwarranted. As a result, defendants’ motion should be denied in its entirety,” Brennan’s response stated.
U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-01417
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com