Case Document 1 Filed 10/19/17 Page 1 of 24 IS 44 (Rev- 06/17) CIVIL COVER SHEET The .I 44 civil cover sheet and the information contained herein neither replace nor supplement the ?ling and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. PLAINTIFFS DEFENDANTS Robert Tomaszewski City of Philadelphia County of Residence of First Listed Plaintiff Philadeiphia County of Residence of First Listed Defendant Philadelphia (EXCEPT US. PLAINTIFFCASES) (INUS. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (FirinName, Address. and Telephone Number) Attorneys (IfKnown) Caren N. Gurmankin, Esq. Console Mattiacci Law 1525 Locust St, 91h FL, Philadelphia, PA 19102 215-545?7676 BASIS OF JURISDICTION (Place an ?X?t?n One Box Only) In. CITIZENSHIP 0F PRINCIPAL PARTIES (Place an in One Boxfbr (For Diversity Cases Only) and One Boxfor Defendant) I US. Government 13 3 Federal Question PTF DEF PTF DEF Plaintiff (US. Government Not a Party) Citizen of This State I 1 Incorporated or Principal Place 4 1:1 4 of Business In This State 121 2 US. Government Cl 4 Diversity Citizen of Another State Cl 2 13 2 Incorporated and Principal Place 5 Cl 5 Defendant (Indicate Citizenship ome-ries in Item 111) of Business In Another State Citizen or Subject of a El 3 3 Foreign Nation 13 6 6 Foreign Country IV NATURE OF SUIT (Place an In One Box Only) Click here for: Nature of Suit CodeDescri tions 7 1ORT . 0 F131 110 Insurance PERSONAL INJURY PERSONAL INJURY El 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act [3 120 Marine Cl 310 Airplane E3 365 Personal Injury - of Property 21 USC 881 CI 423 Withdrawal 130 Miller Act Cl 315 Airplane Product Product Liability 1:1 690 Other 28 USC 157 3729(3)) 13 140 Negotiable Instrument Liability C1 367 Health Care/ 13 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel Pharmaceutical HT .. E1 410 Antitrust Enforcement of Judgment Slander Personal Injury E1 820 Copyrights El 430 Banks and Banking 151 Medicare Act 13 330 Federal Employers? Product Liability E1 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 13 835 Patent - Abbreviated CI 460 Deportation Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer In?uenced and (Excludes Veterans) 345 Marine Product Liability I3 840 Trademark Corrupt Organizations 53 Recovery of Overpayment Liability PERSONAL PROPERTY La'fi-Ef 1' - . 480 Consumer Credit of Veteran?s Bene?ts E1 350 Motor Vehicle 0 370 Other Fraud 1:1 710 Fair Labor Standards CI 861 l-iIA (1395ft) 1'3 490 Cable/Sat TV E1 160 Stockholders? Suits 355 Motor Vehicle [3 371 'I?nrth in Lending Act 121 862 Black Lung (923) El 850 Securities/Commodities/ 1:1 190 Other Contract Product Liability [3 380 Other Personal F1 7201..abor/Management C1 863 (405(g)) Exchange Cl 195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI CI 890 Other Statutory Actions Cl 196 Franchise Injury 13 385 Property Damage C1 740 Railway Labor Act 865 (405(g)) 891 Agricultural Acts 1:1 362 Personal Injury - Product Liability 751 Family and Medical Cl 893 Environmental Matters Medical Mal rm 1 Leave Act C1 895 Freedom of Information REAL PROPER: IVIL Gil-Ia E3 790 Other Labor Litigation TAXI-SUIT Act 210 1 and Condemnation 1?1 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement [3 870 Taxes (US. PI intif El 896 Arbitration El 220 Foreclosure E1 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure 3 230 Rent Lease Ejectrnent 442 Employment 510 Motions to Vacate Cl 871 IRS?Third Party Act/Review or Appeal of E1 240 Torts to Land 1:1 443 Housing/ Sentence 26 USC 7609 Agency Decision 13 245 Tort Product Liability Accommodations C1 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/Disabilities - CI 535 Death Penalty State Statutes Employment Other: 462 Naturalization Application 13 446 Amer. w/Disabilities El 540 Mandamus Other 465 Other Immigration Other 121 550 Civil Rights Actions 13 448 Education 11'! 555 Prison Condition [1 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an in One Box Only) 1 Original 13 2 Removed from 1'3 3 Remanded from El 4 Reinstatcd or 5 Transferred from El 6 Multidistrict CI 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation (specify) Transfer Direct File Cite the US Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 42 USC $2000e. et sea; 42 USC $1981; 43 PS. S951, et secr; Phila. Code ?9-1101,etseu. Brief description of cause: Plaintiff was discriminated against based on his race VI. CAUSE OF ACTION VII. REQUESTED IN 121 CHECK IF THIS IS A CLASS ACTION DEMAND 55 CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, in excess of $75,000 JURY DEMAND: in Yes RELATED . . IF ANY e8 JUDGE DOCKET NUMBER DATE SIGN OF ATTOR -Y . 10/19/2017 FOR OFFICE USE ONLY MAG. JUDGE RECEIPT AMOUNT APPLYING IFP Case Document 1 Filed 10/19/17 Page 2 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CASE MANAGEMENT TRACK DESIGNATION FORM Robert Tomaszewski, Piaintifi 2 CIVIL ACTION V. City of Philadelphia, . Defendant 2 NO. In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of ?ling the complaint and serve a copy on all defendants. (See :03 of the plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a Case Management Track Designation Form specifying the track to which that defendant believes the case should be assigned. SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS: Habeas Corpus Cases brought under 28 U.S.C. 2241 through 2255. Social Security Cases requesting review of a decision of the Secretary of Health and Human Services denying plaintiff Social Security Bene?ts. Arbitration Cases required to be designated for arbitration under Local Civil Rule 53.2. Asbestos Cases involving claims for personal injury or property damage from exposure to asbestos. Special Management Cases that do not fall into tracks through that are commonly referred to as complex and that need special or intense management by the court. (See reverse side of this form for a detailed expianation of special management cases.) Standard Management Cases that do not fall into any one of the other tracks. 10/19/17 C: Plaintiff, Robert Tomaszewski Date Attorneyaw Attorney for 53 215?545-7676 215-565? gurm an (X) T?elephone FAX Number E-Mail Address (Civ. 660) 10/02 Case 2:17-c-v- -04675- JD Document 1 Filed 10/19/17 Page 3 of 24 NITED STATES DISTRICT COUR FOR THE EASTERN DISTRICT OF DESIGNATION FORM to be used by counsel to indicate the category of the case for the purpose of assignment to appropriate calendar. Address ofPlaintiff: Philadelphia. PA 19152 Address ofDefendant: 1401 John F. Kennedy Boulevard; Philadelphia, PA 19102 Place of Accident, Incident or Transaction: (Use Reverse Side For Additional Space) Does this civil action involve a nongovernmental corporate party with any parent corporation and any publicly held corporation owning 10% or more of its stock? (Attach two copies of the Disclosure Statement Form in accordance with Fed.R.Civ.P. YesU N021 Does this case involve Inultidistrict litigation possibilities? YesD NOEX TED CASE, IF ANY: Case Number: Judge Date Terminated: Civil cases are deemed related when yes is answered to any of the following questions: 1. Is this case related to property included in an earlier numbered suit pending or within one year previously terminated action in this court? chi?j NOW 2. Does this case involve the same issue of fact or grow out of the same transaction as a prior suit pending or within one year previously terminated action in this court? YesD Now 3. Does this case involve the validity or infringement of a patent already in suit or any earlier numbered case pending or within one year previously terminated action in this court? Yesl:I No? 4. Is this case a second or successive habeas corpus, social security appeal, or pro se civii rights case ?led by the same individuai? YesE3 CIVIL: (Place 5/ in ONE CATEGORY ONLY) A. Federal Question Cases: B. Diversity Jurisdiction Cases: 1. El Indemnity Contract, Marine Contract, and All Other Contracts 1. Insurance Contract and Other Contracts 2. El FELA 2. E1 Airplane Personai Injury 3. Jones Act-Personal Injury 3. Assault, Defamation 4. 1:1 Antitrust 4. El Marine Personal Injury 5. El Patent 5. F1 Motor Vehicle Personal Injury 6. Labor-Management Relations 6. 1:1 OtherPersonal Injury (Please specify) 7. IX Civil Rights 7. El Products Liability 8. Habeas Corpus 8. 111 Products Liability? Asbestos 9. Securities Act(s) Cases 9. All other Diversity Cases 10. Social Security Review Cases (Please specify) 11. El Ail other Federal Question Cases (Please specify) ARBITRATION CERTIFICATION (Check Appropriate Category) Caren N. Gurmankin, Esquire counsel ofrecord do hereby certify: Pursuant to Local Civil Rule 53.2, Section that to the best of my knowledge and belief, the damages recoverable in this civil action case exceed the sum of $150,000.00 exclusive of interest and costs; Relief other than monetary damages is sought. DATE: 10/19/17 205900 Attorne ~Law Attorney NOTE: A trial dc nov be a trial by jury only has been compliance with F.R.C.P. 38. I certify that, to my knowledge, the within case is not related to any case now pending or within one year previously terminated action in this court except as noted above. DATE: 10/19/17 Ci: 205900 ?at-Law Attorney CIV. 609 (5/2012) Case Document 1 Filed 10/19/17 Page 4 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ROBERT TOMASZEWSKI Philadelphia, PA 19152 CIVIL ACTION NO. Plaintiff, v. CITY OF PHILADELPHIA 1401 John F. Kennedy Boulevard Philadelphia, PA 19102 JURY TRIAL DEMANDED Defendant. COMPLAINT I. INTRODUCTION Plaintiff, Robert Tomaszewski, brings this action against his employer, the City of Philadelphia (?Defendant?). Plaintiff has over thirty two (32) years of experience working in Defendant?s Department of Prisons, including over eleven (11) years of experience as a Deputy Commissioner, and an excellent record within the Department. Defendant passed him over for promotion into the open Commissioner position, and, instead, selected a less experienced, less qualified employee based on race and sex. After Plaintiff complained about Defendant?s discriminatory conduct in failing to promote him, Defendant retaliated against him. Defendant discriminated against Plaintiff based on his race, and retaliated against him based on his complaints about the same, in violation of Title VII of Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 5 of 24 the Civil Rights Act of 1964, as amended, 42 U.S.C. ?2000e, et seq. (?Title 42 U.S.C. ?1981 (?Section 1981?), the Human Relations Act, as amended, 43 RS. ?951. et seq. and the Philadelphia Fair Practices Ordinance, as amended, Phila. Code ?9~1101, et seq. Defendant also discriminated against Plaintiff based on his sex, and retaliated against him based on his complaints about the same, in violation of Title VII, the PHRA, and the PFPO. Defendant?s conduct also deprived Plaintiff of his constitutional rights of the Equal Protection Clause of the Constitution in violation of 42 U.S.C. ?1983 (?Section 1983?). ll. PARTIES 1. Plaintiff, Robert Tomaszewski, is an individual and a citizen of the Commonwealth of 2. Plaintiff is white. 3. Plaintiff is male. 4. Defendant, the City of Philadelphia, is a political subdivision of the Commonwealth of with its principal office located at 1401 John F. Kennedy Boulevard, Philadelphia, PA 19102. 5. Defendant is engaged in an industry affecting interstate commerce and regularly do business in the Commonwealth of 6. At all times material hereto, Defendant employed more than fifteen (15) employees. 7. Defendant has engaged in a pattern and practice of considering characteristics such as race and/or sex when making employment decisions. Case Document 1 Filed 10/19/17 Page 6 of 24 8. At all times material hereto, Defendant instituted, acquiesced in, ratified and/or made employment decisions based on consideration of characteristics such as race and/or sex. 9. At all times material hereto, Defendant acted by and through its authorized agents, servants, workmen, and/or employees acting within the course and scope of their employment with Defendant and in furtherance of Defendant?s business. 10. At all times material hereto, Defendant acted as an employer within the meaning of the statutes which form the basis of this matter. 1 11. At all times material hereto, Plaintiff was an employee of Defendant within the meaning of the statutes which form the basis of this matter. 12. At all times material hereto, Defendant acted under color of state law. Ill. JURISDICTION AND VENUE 13. The causes of action which form the basis of this matter arise under Title VII, Section 1981, Section 1983, the PHRA, and the PFPO. 14. The District Court has jurisdiction over Count I (Title VII) pursuant to 42 U.S.C. ?2000e?5 and 28 U.S.C. ?1331. 15. The District Court has jurisdiction over Count II (Section 1981) pursuant to 28 U.S.C. ?1331. 16. The District Court has jurisdiction over Count (Section 1983) pursuant to 28 U.S.C. ?1331. 17. The District Court has supplemental jurisdiction over Count IV Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 7 of 24 (PHRA) pursuant to 28 U.S.C. ?1367. 18. The District Court has supplemental jurisdiction over Count (PFPO) pursuant to 28 U.S.C. ?1367. 19. Venue is proper in the District Court under 28 U.S.C. ?1391(b) and 42 U.S.C. 20. On or about July 5, 2016, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission complaining of acts of discrimination alleged herein. This Charge was cross?filed with the Human Relations Commission Attached hereto, incorporated herein and marked as Exhibit is a true and correct copy of the EEOC Charge of Discrimination (with personal identifying information redacted). 21. On or about July 25, 2017, the EEOC issued to Plaintiff a Notice of Right to Sue for Charge of Discrimination. Attached hereto, incorporated herein and marked as Exhibit is a true and correct copy of the notice with personal identifying information redacted. 22. Plaintiff has fully complied with all administrative prerequisites for the commencement of this action. lV. FACTUAL ALLEGATIONS 23. Plaintiff was hired by Defendant in or around 1984 as a Correctional Officer in the Department of Prisons. 24. Plaintiff has consistently demonstrated excellent performance throughout his employment with Defendant. He was promoted multiple times, including, just about two (2) years after he started working at Defendant, into the Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 8 of 24 position of Correctional Sergeant. He was subsequently promoted into the position of Lieutenant, and then Captain, Deputy Warden, and then Warden. 25. In or about 2005, Plaintiff was promoted into the position of Deputy Commissioner for Administration. 26. In or around late 2015, Defendant?s Commissioner of Prisons announced that he would be retiring effective January 2016. As a result, Defendant posted the position of Commissioner and created a panel to inteview potential candidates for the position. 27. Plaintiff applied for the Commissioner position, as he was qualified for the same. He was interviewed by Defendant?s search panel in or around December 2015. 28. On or about January 8, 2016, Defendant announced that it was appointing an employee from outside of the Department of Prisons as Acting Commissioner for a six (6) month period so that it could continue searching for a permanent Commissioner. Around that time, Defendant contacted Plaintiff and told him only that it was going in a different direction regarding the Commissioner position. 29. In or around April 2016, the Acting Commissioner also told Plaintiff that Mayor Kenney?s administration agreed that, per pressure from the Philadelphia Chapter of the National Association for the Advancement of Colored People, Defendant would appoint a black female as the next Commissioner. 30. Around that time, the Acting Commissioner informed Plaintiff that he had a discussion with First Deputy Managing Director of Defendant who was Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 9 of 24 also a member of Defendant?s search panel for the Commissioner position. In that discussion, the Acting Commissioner told the First Deputy that he was aware that Defendant was searching for a black female to fill the Commissioner position. The Acting Commissioner also told the Deputy that, based on what Defendant was looking for, it should interview a black female Deputy Commissioner within the Department of Prisons, Blanche Carney. 31. The Acting Commissioner told Plaintiff that the First Deputy did not deny that Defendant was looking to fill the Commissioner position with a black female. 32. To the best of Plaintiff?s knowledge, Carney had not applied forthe Commissioner position. 33. In around April 2016, Defendant interviewed Carney for the Commissioner position. 34. To the best of Plaintiff?s knowledge, since January 2016, Defendant had interviewed only black female candidates for the Commissioner position. 35. On or about April 23, 2016, Defendant announced that it had selected Carney for the Commissioner position. 36. Carney was less qualified than Plaintiff for the Commissioner position. By way of example only, Plaintiff had substantially greater tenure in Defendant?s Department of Prisons than Carney, and Plaintiff had over eleven (11) years as a Deputy Commissioner at the time that Defendant selected Carney, while she had approximately one (1) year of experience as a Deputy Commissioner. Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 10 of 24 37. Upon Carney becoming Commissioner effective on or about May 23, 2016, Plaintiff reported directly to her. 38. Defendant did not provide Plaintiff with a reason as to why it failed to promote him into the position of Commissioner. 39. On or about July 5, 2016, Plaintiff filed his Charge of Discrimination with the EEOC regarding the race and sex discriminatory to which Defendant subjected him by not selecting him for the Commissioner position. He advised Defendant, including Carney, of the same. 40. In or around August 2016, Defendant conducted an audit of one (1) of the funds in the Department that was administered by Plaintiff?s office. As part of the audit, the Department?s Chief of Staff noticed some perceived irregularities regarding withdrawals, and reported the same to Carney. As the Chief of Staff subsequently told Plaintiff, Carney said that she wanted him to send the matter to Defendant?s Office of Inspector General to conduct an investigation as she was annoyed by the fact that Plaintiff had filed an EEOC Charge. 41. At the conclusion of the investigation, in or around February 2017, Plaintiff was informed that it concluded that there were no irregularities regarding the fund and no improprieties regarding the administration of the fund. 42. To date, Defendant has not informed Plaintiff of remedial and/or corrective action that it has taken regarding his complaints of discrimination. 43. Defendant?s conduct demonstrates that it has a pattern and practice of considering characteristics such as race and/or sex when making employment decisions. Aside from that which is set forth above, evidence of the Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 11 of 24 same includes, but is not limited to, the following: In a meeting with Carney and the Chief of Staff for the Department of Prisons, Plaintiff was told that he could not fill a particular position because the candidate who was selected was of indian descent and, according to Carney, there were ?too many lndians? in that particular unit of the Department; Carney told Plaintiff that Defendant?s First Deputy Managing Director instructed her to fill an open position with a Hispanic female candidate; Carney also told Plaintiff that he had been pressured to recommend a Hispanic candidate for the open position because there were not enough high?ranking employees of Hispanic origin within the prison system; and, During the hiring process for a particular position within the Department, the First Deputy Managing Director stated that, ?too many white women are applying for this position.? 44. Plaintiff?s race was a motivating and/or determinative factor in Defendant?s discriminatory treatment of Plaintiff, including its failure to promote him into the Commissioner position. 45. Plaintiff?s sex was a motivating and/or determinative factor in Defendant?s discriminatory treatment of Plaintiff, including its failure to promote him into the Commissioner position. 46. Plaintiff?s complaining of sex discrimination was a motivating and/or determinative factor in Defendants? retaliatory treatment of Plaintiff, including falsely accusing him of engaging in improper conduct and subjecting him to an Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 12 of 24 investigation regarding the same. 47. Defendant failed to prevent or address the discriminatory and retaliatory conduct referred to herein and further failed to take corrective and remedial measures to make the workplace free of discriminatory and retaliatory conduct 48. The retaliatory action taken against Plaintiff after he complained of discriminatory conduct would have discouraged a reasonable employee from complaining of discrimination. 49. As a direct and proximate result of the discriminatory and retaliatory conduct of Defendant, Plaintiff has in the past incurred, and may in the future incur, a loss of earnings and/or earning capacity, loss of benefits, pain and suffering, embarrassment, humiliation, loss of self-esteem, mental anguish, and loss of life?s pleasures, the full extent of which is not known at this time. 50. Defendant acted with malice, reckless indifference, and/or deliberate indifference to Plaintiff?s protected rights. COUNT - Title VII 51. Plaintiff incorporates herein by reference paragraphs 1 through 50 above, as if set forth herein in their entirety. 52. By committing the foregoing acts of discrimination and retaliation against Plaintiff, Defendant has violated Title VII. 53. Said violations were done with malice and/or reckless indifference. Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 13 of 24 54. As a direct and proximate result of Defendant?s violation of Title VII, Plaintiff has suffered the damages and losses set forth herein and has incurred attorneys? fees and costs. 55. Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of Defendant?s discriminatory and retaliatory acts unless and until this Court grants the relief requested herein. 56. No previous application has been made for the relief requested herein. COUNT ll Section 1981 57. Plaintiff incorporates herein by reference paragraphs 1 through 56 above, as if set forth herein in their entirety. 58. By committing the foregoing acts of discrimination and retaliation, Defendant has violated Section 1981. 59. Said violations were done with malice and/or reckless indifference. 60. As a direct and proximate result of Defendant?s violation of Section 1981, Plaintiff has suffered the damages and losses set forth herein and has incurred attorneys? fees and costs. 61. Plaintiff is now suffering and will continue to suffer irreparable injury and monetary damages as a result of Defendant?s discriminatory and retaliatory acts unless and until this Court grants the relief requested herein. 62. No previous application has been made for the relief requested herein. 1O Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 14 of 24 COUNT Ill -- Section 1983 63. Plaintiff incorporates herein by reference paragraphs 1 through 62 above, as if set forth herein in their entirety. 64. Defendant?s discriminatory and retaliatory conduct, as set forth herein, deprived Plaintiff of equal protection under the law as guaranteed by the Fourteenth Amendment of the United States Constitution. 65. Defendant?s violation of the constitution included policies, practices, and/or customs to treat white employees less favorably than non-white employees, which was committed, directed, implemented, and/or ratified by officials of Defendant in supervisory capacities with policymaking and decision- making authority. 66. As a direct and proximate result of Defendant?s acts and conduct which caused and continue to cause Plaintiff to be denied equal protection under the law, Plaintiff has suffered and will suffer those injuries, damages, and losses alleged herein and has incurred and will incurred attorneys? fees. 67. The wrongful acts and conduct of Defendant were done with deliberate indifference to the statutory and constitutional rights of Plaintiff. COUNT IV - PHRA 68. Plaintiff incorporates herein by reference paragraphs 1 through 67 above, as if set forth herein in their entirety. 69. Defendant, by the above improper and discriminatory and retaliatory acts, has violated the PHRA. 70. Said violations were intentional and willful. 11 Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 15 of 24 71. As a direct and proximate result of Defendant?s violation of the PHRA, Plaintiff has sustained the injuries, damages, and losses set forth herein and has incurred attorney?s fees and costs. 72. Plaintiff is now suffering and will continue to suffer irreparable injuries and monetary damages as a result of Defendant?s discriminatory and retaliatory acts unless and until the Court grants the relief requested herein. 73. No previous application has been made for the relief requested herein. COUNT - PFPO 74. Plaintiff incorporates herein by reference paragraphs 1 through 73 above, as if set forth herein in their entirety. 75. Defendant, by the above improper and discriminatory and retaliatory acts, has violated the PFPO. 76. Said violations were intentional and willful. 77. As a direct and proximate result of Defendant?s violation of the PFPO, Plaintiff has sustained the injuries, damages, and losses set forth herein and has incurred attorney?s fees and costs. 78. Plaintiff is now suffering and will continue to suffer irreparable injuries and monetary damages as a result of Defendant?s discriminatory and retaliatory acts unless and until the Court grants the relief requested herein. 79. No previous application has been made for the relief requested herein. 12 Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 16 of 24 RELIEF WHEREFORE, Plaintiff seeks damages and legal and equitable relief in connection with Defendant?s improper conduct, and specifically prays that the Court grant the following relief to the Plaintiff by: declaring the acts and practices complained of herein to be in violation of Title declaring the acts and practices complained of herein to be in violation of Section 1981; declaring the acts and practices complained of herein to be in violation of Section 1983; declaring the acts and practices complained of herein to be in violation of the declaring the acts and practices complained of herein to be in violation of the enjoining and permanently restraining the violations alleged herein; entering judgment against the Defendant and in favor of the Plaintiff in an amount to be determined; awarding compensatory damages to make the Plaintiff whole for all lost earnings, earning capacity and benefits, past and future, which Plaintiff has suffered or may suffer as a result of Defendant?s improper conduct; awarding compensatory damages to Plaintiff for past and future pain and suffering, emotional upset, mental anguish, humiliation, and loss 13 Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 17 of 24 of life?s pleasures, which Plaintiff has suffered or may suffer as a result of Defendant?s improper conduct; awarding Plaintiff such other damages as are appropriate under Title VII, Section 1981, Section 1983, the PHRA, and the awarding Plaintiff the costs of suit, expert fees and other disbursements, and reasonable attorney?s fees; and, granting such other and further relief as this Court may deem just, proper, or equitable including other equitable and injunctive relief providing restitution for past violations and preventing future violations. CONSOLE MATTIACCI LAW, LLC Dated: October19, 2017 BY: StephenG. Co le (36656) Caren N. Gur ankin (205900) 1525 Locus St, 9th Floor Philadelphia, PA 19102 (215) 545-7676 Attorneys for Plaintiff, Robert Tomaszewski 14 Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 18 of 24 Exhibit 1 Case 2:17-cv-04675-JD Documentl Filed 10/19/17 Page 19 of 24 CHARGE OF befara consoiidating this form. This fonn i3 a?ecte? by the Privacy Act (if 1974; 899 privacy statement AGENCY FEPA EEOC CHARGE NUMBER 31535} 20/67: STATE OR LOCAL AGENCY: Pennsyivania Human Relationn Cpmmission; Phiiadelphia Eemmission on Human Relations NAME (indicate: Mr., Ms., Mrs) Robert Tomanzewski NAMED IS THE LABOR STATE OF LOCAL SOVERNMENT WHO DISC CITY, AND Philadelphia, PA 19152 ZATION, EMPLUYMENT AGENCY, AW ME (if more than one than ?at below) -- an un- EE {made Ana We) DATE DF BIRTH 1401 John F. Kennedy Bouiavard Philadelphia, PA 19107 NAME NUMBER OF EMPLOYEES TELEPHONE (include Area Code) City of Philademhia Over #500 STREET ADDRESS CITY, STATE AND GQUNTY Phiiadaiphia CAUSE OF (Check apprapn'aw Dawns? XX Race Color XX Sex Reiigi?on National Origin Age Disability Other (Specify) DATE TOOK PLACE Ea?iesf Latest April 23, 201i; 9 PARTICULARS RE A, Raievant Work History in an about 1984, I was hired as a Correctional Prisonsi? In 1986, i was promoted to Correctinnai 1996, I was prnmotad to Captain. this position that i currently hold. hardworking empioyee, myjab duties in an pcsitive parformanca feedback. Throughout my 011m thirty-two (32) years of emni Prisms and my over eleven 1) years as Denniy Cum exnniient manner, and containtentiy remained Officer at Reapondent?e Department Of Sergeant. in 1993, i was promoted in Lieutenant. in in 1999, i was promoted to [inputy Warden. in 2003, wag promoted tn Warden. In 2005, I was promoted to Deputy Commisninner for Administration, which is at Department Of missinner there, i have been a dedicated and 12L .1 want this charge ?ied with bath the EEOC and the Strata or locai Agency, if any. i will advise the: manning if i change my address ui? teiephune number and caannrata fully with them in tha processing of my . chargn in with their premiums RmWemnnw} A deniare undiar mingoing is trim and correct. [Tl a} ?x .J 93:2wa Ww~m~v-E Data! Charging Party (Eignature) siennwna??nnm 21'; E, 1 3? i 1 All times s?t forth herein are ZS :3 Rd Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 20 of 24 EEOC Charge 0f Disnriminntidn Page 2 of 3 Robert v. City of Philadelphia 2. Summary of Harm discriminated against me tanned on my race (white) and sex (male) in connection with its failure to hire or me intd a poditinn for which I applied and was the most qualified candidate. Evidence of dinnrimindtinn includes, but is not iirnited to, the fnllowing: a. in late 2015. the Cornrnisninner nf Prisons, Louis Giorla. announced that he: to retire in January 2016. b. in or about 2015, Responds-int had a search panel begin interviewing for candidates in tall the: samurai?be vacant partition of Commissioner of Prindnn (?Commissioner?) position. - c. On December 9, 20155, i applied and intervinwed for the Commissidndr position? d. i-was one (1) of six (6) candidates who interviewed for the: Commissioner pdditidn during December 2015. 9. 0t? the six (6) candidatdrs who interviewed fertile Commission pnsitinn in 2015. Only one (1) candidate was African American and home were female. f. Grid (1) of the candidates will: applied for the Commisnidner tradition in Dnnember 2015 wad Michaei?nsnick (white, male). Prior tn applying for the position, Mr. Resnidlr was Director of Public dainty at in Mr. Rasnick?s prim min as Directnr at Public: Sanity, one (1) of his direct reports; was. the cummiddidner. However, in January 2018, Mr. Rnsnick?s Director of Public Safety nnditinn was eliminated. 9. On January 8, 201a, Respondent that Mr. Rnsnick would temporarily annume the role of Acting Commisnidner for a period of up to six (6) months: so that the Respondent?s; snatch panel could cdntinun marching for a new candidate to till the Gnmmissinner position on a permanent basis. h. From that time, Respondent specifically naught nut female, African American candidates for the positinn. i. Between January and March 2018, all ofthe candidates that interviewed for the Commidsionnr position were female: and African American. j. in early April 2018, Mr. Resnick told Brian Abernathy First Deputy Managing Director of Respondent and one. (1) of the members of search pannl that he was aware that Respondent was searching far a female, African American candidate to ?ll the Commissioner position and suggested that Respondent consider interviewing one (1) of the deputy onmmissioners in Department of Prisons, Blanche Carney, who wait female and African American. k. Mr. Abernathy did not deny that was marching for a female, African American candidate: tn fill the: l. in April 2016. Respondent interviewed M51 Carney farther Commianionnr pnsitinn. Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 21 of 24 EEOC: Charge at Dieeriminatinn Page 3 of 3 Robert Tomaezewekl v. City at Philadelphia m. cm April 23, 2016, Respondent announced that it had selected Me. Carney fer the Commissioner position. n. lwee the most quali?ed candidate for the Commissioner nesition and was considerably mere quali?ed and experienced than Me. Carney. o. By way of example only, and without limitation, Me. Carney had only had approximately nne (1) year of experience as a deputy commissioner, whereas i had over eleven (11) years of experience as a deputy commissioner and over (32) years of experience in Respondent?s Department of Prisons. p. Reepondent has a pattern and practice of considering race and sex when making employment decisions, including, but not limited in, decisidne relating to hiring and promenade q. By way of example only, and withnut limitation. in April 2016, Me. Carney informed me that Mr. Abernathy told her to till her prior deputy pneitinn with femeie. i-iispenic candidate. r. On May 23, 2016. Ms. Carney assumed the pneition. 3. At that time, Mr. Reenick was demeted into a deputy cnmmiesidner position. B. Respondent?s Stated Reasene a. Reapendent has failed to provide me with any legitimate, nan?discriminatory reason for failing to hire me for a peeitinn for which i applied and was the most qualified candidate. 0. Statutes and Basis for Allegations Respondent discriminated egainet me based an my race (white) and sex (male) in violation of ?Title Vii 0f the Civil Rights Act at 1964, as amended, 42 U.8.C. 200% et Human Relatione Act, 43 951 et $603., and the Philadelphia Fair Practices Ordinance. Phile. Cede SM 108 et eeq. D. GLASS CHAR .E. i bring this charge of discriminatinn on behalf of all employees of Respondent have been subjected to advelee employment ectiene because an? race and sex, including. but net limited to, failures to hire or promote and deductions.? Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 22 of 24 . ?t t: ?ff. i gv i: FOR COMPLAWANTS 3L ELECTION T0 DUAL FILE WITIITHE 5p 2 5 HUMAN RELATIONA commw?t Hit {3 mm Rubert v. City of Philadalphla EEOC No. You have: the right to ?le this charge at discrimination with the, Human Rclations Commission (PHRC) under the Human Relations Act. Filing your charge with PHRC protecta your state rights, eapecially since there may be circumettanmas in which 5mm anti federal laws and vary in a manual: which Would affect the outcome of ymur sate. Complaints ?led with the PHRC must be ?led within 180 days oftha act(s) which you believe are mzlawful disoriminatinn If PHRC detem?neg that your PHRC untimaly, it Will be dimnissed If you want your charge ?led with the PI-IRC, including this form as pant ofyaur EEOC charge, with your signature under th? verification below, will caustimte ?ling with the PHRC. You have chosen E1300 to ymur complaim so PHRC will not investigate it and, in meat cases, will accapt 3 ?nding If you disagree with adoptian of EEOC ?nding, yam will have the chance to ?le a request for preliminary hearing with PHRC Since you have chasm ta ?le your 011mm; first with EEOC, making it the primary lnveatigatqry agency, the Raspondent will mt he requimd t0 flit:- an answar with and no cther station with PHRC is rmttirecl by party, unlma/until noti?ad by If your was: is still panting with PHRC after one year from ?ling with PHRC, you have the tight to file your complaint in State mutt. PHRC will inform of these rights and obligatiens at that time. [Sign and date apprapriate request below] I want my charge ?led with PIIRC Ihemby incm'pamte this form and the: veri?cation below into the: attachad EEQC form and ?le: it 21311133 PHRC mmplaint. I requast EEOC to transmit it to I understand that fumes SIGIQMQFIIS in this complaint are Made subject the: penalties of IS Pa. C. ?4904, relatfng to unmomfalsi?m?m to 3 Signatm?e and watt: 1 I do not want my charge dual ?lad with mm: Signature: and Date: Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 23 of 24 Exhibit 2 Case 2:17-cv-04675-JD Document 1 Filed 10/19/17 Page 24 of 24 assoc Form161~B (11/16) U.S. EQUAL. EMPLOYMENT OPPORTUNITY COMMISSION Nonce 0F RIGHT TO SUE (ISSUED on REQUEST) To: kl From: Philadelphia District Office 801 Market Street a a, PA 19152 Suite 1300 Phliadeiphla, PA 19107 On behalf of person(s) aggrieved whose identity is CONFIDENTIAL (29 CFR EEOC Charge No. EEOC Representative Telephone No. Legal Unit, 530?2016-03481 Legal Technician (215) 440-2828 . . (See also the additional information enclosed with this form.) TO THE Pensou Aeemevec: - . . Title Vii of the Civil Rights Act. of 1964, the Americans with Disabilities Act (ADA), or the Genetic information Nondiscrimination Act (GINA): This is your Notice of Right to Sue, issued under Title Vii, the ADA or GINA based on the above-numbered charge. it has been issued at your request. Your lawsuit under Title Vii, the ADA or GINA must be ?led in a federal or state court 99 DAYS of your receipt of this notice: or your right to sue based on this charge will be lost. (The time limit for ?ling suit based on a claim under state law may be different.) More than 180 days have passed since the ?ling of this charge. Less than 180 days have passed since the ?ling of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the tiling of this charge. The EEOC is terminating Its processing of this charge. DEI The EEOC will continue to process this charge. Age Discrimination in Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was ?led untii 90 days after you receive notice that we have completed action on the charge. in this regard, the paragraph marked below applies to your case: .. The EEOC is closing your case. Therefore, your lawsuit under the ADEA must be ?ied In federal or state court 90 DAXS of your receipt of this Notice. Otherwise. your right to sue based on the above-numbered charge wilt be lost. The EEOC is continuing its handling of your ADEA case. However. If 60 days have passed since the ?iing of the charge. you may ?le suit in federal or state court under the ADEA at this time. Equai Pay Act (EPA): You aiready have the right to sue under the EPA (?ling an EEOC charge. is not required.) EPA suits must be brought In federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment This means that backpay due for any violations that occurred more than 2 veais (3 vea_rs_) before you file suit may not be collectible. if you tile suit, based on this charge. please send a copy of your court complaint to this of?ce. On be theCommission (D7I/2?5j/Jlot 7 Enclosures(e) Spencer H. Lewis, Jr" (Date Mailed) District Director cc: Linda Busiilo. Sr. Legal Asst. Supervisor Nicholas Romeu, Esq. CITY OF PHILADELPHIA CONSOLE LAW OFFICES Philadelphia Law Department, Labor 8: Employment Unit 1525 Locust Street 1515 Arch Street 16th Fioor 9th Floor Philadelphia, PA 19102 Philadelphia, PA 19102