Brennan v. City of Phila.
Brennan v. City of Phila.
Opinion of the Court
I. INTRODUCTION
Plaintiff Charles Brennan asserts that he was terminated from his position with the City of Philadelphia for voicing concerns over several perceived unlawful practices, including racially discriminatory hiring and violation of public contract award requirements. Plaintiff asserts retaliation claims against defendants the City of Philadelphia, Mayor James Kenney, and City officers Christine Derenick-Lopez and Jane Slusser pursuant to
II. BACKGROUND
The facts as set forth in this section are taken from the allegations in plaintiff's Second Amended Complaint.
In January 2016, plaintiff was hired as the City of Philadelphia's ("City") Chief Information Officer ("CIO"), responsible for overseeing technology matters for City. See Second Am. Compl. ("SAC") ¶¶ 18-19. As CIO, he reported to, and was supervised by, Christine Derenick-Lopez, City's Chief Administrative Officer.
In November 2015, after Mayor James Kenney was elected, he began a hiring initiative to diversify City's workforce.
Second, plaintiff alleges retaliation for complaints he made about a contract that City entered with Axon Enterprises, Inc., in 2017 to purchase 4,000 body cameras for City patrol officers.
Third, plaintiff alleges retaliation for his complaints about Comcast's failure to meet certain deadlines required by its cable-franchise agreement with City. Comcast had a contract with City that required it to perform work, including repairing dangling wires and providing proper grounding, within certain deadlines.
Finally, plaintiff alleges retaliation for his complaints about being asked to attend sensitivity training. In fall 2017, Derenick-Lopez told plaintiff he was insensitive to gender in the workplace, citing a few of plaintiff's comments as examples, and recommended that plaintiff undergo sensitivity training.
On or about January 12, 2018, plaintiff was called into a meeting with Derenick-Lopez and Slusser and was terminated.
Plaintiff filed the Complaint on April 4, 2018 (Document No. 1), asserting claims against the City of Philadelphia, Kenney, Slusser, and Derenick-Lopez. Plaintiff filed the First Amended Complaint on June 18, 2018 (Document No. 5). On March 29, 2019, plaintiff filed the Second Amended Complaint (Document No. 21), asserting retaliation claims against all defendants under § 1981 (Count I), the First Amendment through § 1983 (Count III), the Pennsylvania Whistleblower Law (Count IV), the PHRA (Count V), and the PFPO (Count VI), as well as a Title VII retaliation *520claim against the City of Philadelphia (Count II).
On May 1, 2019, plaintiff filed a motion to compel the deposition of Kenney (Document No. 23). On May 7, 2019, defendants responded to the motion (Document No. 24), and on May 24, 2019, plaintiff filed a reply (Document No. 26). The motion is thus ripe for decision.
III. APPLICABLE LAW
"A party may, by oral questions, depose any person, including a party, without leave of court," unless the party has not stipulated to the deposition. See Fed. R. Civ. P. 30(a). "High ranking government officials are generally entitled to limited immunity from being deposed concerning matters about which they have no unique personal knowledge." Hankins v. City of Phila. , No. 95-1449,
IV. DISCUSSION
Plaintiff seeks to compel Mayor Kenney's deposition. "[D]istrict courts have routinely found that a mayor is sufficiently high ranking to trigger the limited immunity from a deposition about matters on which they lack unique personal knowledge." Tomaszewski v. City of Phila. , No. 17-4675,
A. Likely to Lead to the Discovery of Admissible Evidence
First, plaintiff must show that Kenney's deposition is "likely to lead to the discovery of admissible evidence."
Plaintiff contends that Kenney "possesses personal knowledge relevant to the litigation" because he participated in conversations about terminating plaintiff and agreed to that action, as shown by deposition testimony of Derenick-Lopez and Slusser. See Pl. Mot. Compel 12. For example, Slusser testified that she conveyed concerns about plaintiff to Kenney weeks before plaintiff was terminated. See Pl. Mot. Compel, Ex. E, Slusser Dep. 158:7-22. Both Derenick-Lopez and Slusser testified that they made the decision to terminate plaintiff, then met with Kenney to *521give him a "head's-up" about their decision. See Pl. Mot. Compel, Ex. D, Derenick-Lopez Dep. 81:2-83:12; Slusser Dep. 156:24-157:24. Both Derenick-Lopez and Slusser also testified that Kenney raised no objections and approved that decision. See Derenick-Lopez Dep. 214:23-215:18; Slusser Dep. 157:8, 158:4-6. Furthermore, former Deputy Chief Administration Officer of the Human Resources Department, Jackie Linton, stated in her certification that Derenick-Lopez told her Kenney wanted plaintiff to be let go. See Pl. Mot. Compel, Ex. C, Linton Cert., at ¶ 19.
In addition, plaintiff contends that Kenney has "personal knowledge" relevant to plaintiff's whistleblowing claims regarding the Comcast contract. See Pl. Reply 4-5. Plaintiff testified that Derenick-Lopez told him "the Mayor's office want[ed] [him] to ... take it easy on Comcast," denied by Derenick-Lopez. See Pl. Dep. 157:1-6; Defs. Resp. Ex. C, Derenick-Lopez Dep. 173:3-5.
Defendants argue that plaintiff has not shown that Kenney has relevant personal knowledge. See Defs. Resp. 6. It is defendants' position that although Kenney approved Derenick-Lopez and Slusser's decision to terminate plaintiff, his approval was merely perfunctory and is insufficient to show he has personal knowledge about the reasons for plaintiff's termination. Id. at 6-7. Defendants compare the case to Hankins , in which a court in this District concluded that a mayor's pro forma approval of "changes to job classifications approved and submitted by the Civil Service Commission" was insufficient to demonstrate that he had personal knowledge of the reasons for the changes. See id. at 6; Hankins ,
The Court concludes that plaintiff has adequately shown that deposing Kenney is "likely to lead to the discovery of admissible evidence." See Hankins ,
B. Essential to Plaintiff's Case
Second, plaintiff must show that Kenney's deposition is essential to plaintiff's *522case. See Hankins ,
Plaintiff contends Kenney's testimony about the extent of his involvement and participation in the decision to terminate him is essential to proving Kenney's individual liability under § 1981, the PHRA, and the PFPO. See Pl. Mot. Compel 13. For example, under § 1981, plaintiff must show that Kenney "intentionally cause[d] an infringement of rights." Miller v. Thomas Jefferson Univ. Hosp. ,
Defendants admit that plaintiff "may not be able to succeed on [his] claims against the Mayor without an admission by the Mayor that he was aware of Plaintiff's complaints and was personally involved in the decision to terminate Plaintiff." See Defs. Resp. 8. On this issue, defendants argue that there is "no reason to believe" that Kenney would make statements to that effect if deposed. Id. Furthermore, defendants argue that Kenney's deposition is immaterial to plaintiff's overall success on his claims, because plaintiff can continue to pursue these claims against the remaining individual defendants without prevailing against Kenney. See id. Finally, defendants argue that Kenney's deposition would "largely duplicate evidence provided by other witnesses" and is therefore not essential to Plaintiff's overall case. Id.
The Court determines that plaintiff has shown Kenney's testimony about the Comcast contract and plaintiff's termination is essential to proving his claims against Kenney. Indeed, defendants admit plaintiff is unlikely to succeed on his claims against Kenney without testimony from Kenney himself. Furthermore, the Court rejects defendants' argument that the fact that plaintiff can pursue his claims against other individual defendants is reason to conclude that Kenney's testimony is inessential. Finally, Kenney's testimony would not be duplicative, because discovery and depositions of other city officials has not produced evidence of Kenney's involvement in, for example, plaintiff's termination and the Comcast contract.
C. Available Through Alternative Sources and Less Burdensome Means
Finally, plaintiff must show that the evidence he seeks through Mayor Kenney's deposition is not available through any alternative source or less burdensome means. See Hankins,
Plaintiff contends that Kenney's testimony cannot be obtained in a less burdensome manner, because he will "only be able to fully explore the full extent" of Kenney's conversations with Derenick-Lopez and Slusser regarding the Comcast contract and plaintiff's termination through a deposition. Pl. Reply 7. He maintains that he is willing to limit Kenney's deposition to one hour and to conduct it "on any date and at any time and location convenient" for Kenney. See Pl. Mot. Compel 3.
Defendants argue that if plaintiff "needs a final resolution as to exactly what the Mayor remembers his involvement to be,"
*523then less restrictive means are available, such as interrogatories or requests for admission. Defs. Resp. 9.
The Court agrees with defendants on this issue. Plaintiff has not shown that a limited deposition by written questions pursuant to Federal Rule of Civil Procedure 31 would not be effective in obtaining the information that plaintiff seeks. If, after plaintiff has conducted such a written deposition, plaintiff concludes that an oral deposition of Kenney is still necessary, plaintiff may file a second motion to compel.
V. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel Defendant Mayor James Kenney's Deposition is denied. This order is without prejudice to plaintiff's right to conduct a limited deposition of Kenney by written questions, pursuant to Federal Rule of Civil Procedure 31. If plaintiff concludes, after a limited deposition by written questions, that a limited oral deposition is necessary, plaintiff may file a second motion to compel Kenney's deposition. An appropriate Order follows.
It is unclear, from plaintiff's Second Amended Complaint, who issued this warning or what was said.
Reference
- Full Case Name
- Charles BRENNAN v. CITY OF PHILADELPHIA, Mayor James F. Kenney, Christine Derenick-Lopez, and Jane Slusser
- Cited By
- 8 cases
- Status
- Published