Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—E.D. Pa.: White municipal employee denied promotion in favor of Black candidate advances reverse race bias claim, (Mar 25, 2025)

By Kathleen Kapusta, J.D.

The court found sufficient evidence that could permit a reasonable factfinder to doubt the city’s proffered rationale and infer discrimination.

Although a close question, a federal district court in Pennsylvania found contradictions regarding who was involved in the decision to promote an African-American candidate over a white employee, coupled with the timing of interviews a day after the African-American candidate received a promotion that qualified him for the position in question, could permit a reasonable factfinder to conclude that the city’s proffered reason for choosing the African-American candidate was pretextual. Accordingly, the court denied the employer’s motion for summary judgment against the white employee’s Title VII race discrimination claim (Jacobson v. City of Philadelphia, No. 22-cv-1464 (E.D. Pa. Mar. 19, 2025)).

When the assistant deputy commissioner (ADC) for Philadelphia’s Emergency Medical Services gave notice of her upcoming retirement, the fire commissioner delegated the selection process for her replacement to a committee consisting of the ADC and two deputy commissioners. The ADC also offered the opportunity to shadow her to the employee as well as several other individuals. The employee—an Emergency Medical Services chief—and an African-American captain accepted the opportunity.

Selection process. Both also applied for the ADC role, which required among other things that the candidate be at the rank of chief or above. The captain was promoted to the role of chief on May 25, 2021, and both he and the employee interviewed for the position on May 26. The interview panel submitted their pros and cons to the ADC and one of the deputy commissioners. Although the captain was selected, the ADC testified that she did not know why as she was not part of the selection process. One of the deputy commissioners claimed she believed the other deputy commissioner and the ADC presented their choice to the fire commissioner while the second deputy commissioner testified that the panel recommended a candidate and he forwarded the results to the fire commissioner.

Reverse race discrimination. Suing for reverse race discrimination in violation of Title VII, the employee argued that the city’s proffered reason for not selecting him—he did not perform well in the interview because he could not think outside the box and his style was confrontational and rigidity—was pretextual. In support, he pointed to, among other things, his superior qualifications for the ADC position.

But while the captain had only served as a chief for a day before his interview, he had previously managed a $4.5 million budget, a staff of both civilian and uniformed employees, a warehouse, multiple special event operations, and had nine years of frontline and clinical patient care. He also had a B.S. in emergency management and planning, and a master’s in public administration and law. For his part, the employee held a bachelor’s degree in psychology and a master’s degree in Homeland Security. Further, the interviewers noted strengths and weaknesses for each candidate. In short, said the court, the employee failed to show his qualifications were overall superior to those of the captain.

Inconsistencies in assessments. The employee next pointed, as evidence of pretext, to the deputy commissioner’s inconsistent assessment of the candidates. Specifically, the employee pointed to the deputy commissioner’s testimony that he recommended the captain because he was concerned, based on comments by the interviewers, that the employee was not a team player. The deputy commissioner, however, also admitted that the interviewers said the captain had a “tendency to silo himself” and “may tend to cut corners,” which, he conceded, were traits that were the opposite of being a team player.

Nonetheless, said the court, the deputy commissioner consistently explained that while both candidates had a variety of strengths and weaknesses, he was more concerned with the drawbacks associated with the employee. Thus, his reasoning did not reflect the types of inconsistencies, incoherencies, or implausible statements from which a reasonable factfinder could find pretext.

Prior discipline. Nor was the city’s failure to consider the captain’s suspension for a violation in 2016 evidence of pretext. The city claimed that it selected the captain due to his performance in his interview and the fact that he was suspended for 48 hours five years’ prior did not undermine this rationale, said the court.

Timing of selection process. The employee also noted that the captain only held the role of chief for a day prior to his interview. And while the deputy commissioner testified that it was not unusual for a candidate to serve briefly as chief before being allowed to interview for the ADC position, a reasonable factfinder could determine that the timing of the captain’s promotion to chief a day before the interview, in combination with other circumstantial evidence, suggested that the interview was a mere formality.

Decisionmakers. Finally, the employee argued that there was a material fact issue as to who made the promotion recommendation to the fire commissioner. The fire commissioner testified that he delegated the selection process to the ADC, who in consultation with the deputy commissioners recommended the captain. The ADC, however, testified that she did not know why the captain was selected and that she “wasn’t a part of the selection[.]” And one of the deputy commissioners testified that the “[interview] panel recommended” a candidate and he “forwarded the result of those recommendations” to the fire commissioner. But he also testified that he recommended the captain to the commissioner.

Noting that it was unable to reconcile this testimony regarding who was involved in the decision-making process, the court found sufficient evidence of pretext to preclude summary judgment.

The case is No. 22-cv-1464.

Judge: Surrick, R.

Attorneys: Howard K. Trubman (Personal Injury and Employment Law Center) for Jared Jacobson. Lauri A. Kavulich (Clark Hill PLC) for City of Philadelphia.

Companies: City of Philadelphia

Cases: RaceDiscrimination Discrimination PublicEmployees PennsylvaniaNews