Officer Michael Fiocca was assigned to work in the Philadelphia Police Department Forensic Science Unit (FSU). Starting in 2015 or 2016, Fiocca and the other officers in the FSU gained access to the daily attendance records sheets (DARS) of all officers in the FSU. Fiocca’s access to DARS enabled him to see the vacation and sick balances, as well as the amount of overtime worked for every officer in the FSU.
Based upon his access to DARS, Fiocca believed that he had been wrongly denied overtime. On July 1, 2016, Fiocca filed a lawsuit against the City, alleging that he had been unlawfully denied overtime. The lawsuit was quickly settled.
On March 22, 2017, Fiocca’s supervisor at the FSU, Lieutenant Jonah Conway, called Fiocca into his office and inquired about Fiocca’s prior lawsuit. Fiocca responded that he was unable to discuss the terms of the settlement. In short order Fiocca realized he no longer had access to DARS.
Fiocca complained to Conway about his loss of access to DARS. Conway informed Fiocca that he had terminated Fiocca’s access to DARS and told him that “if he wanted access he had to write a letter to the IT Department downtown.” Fiocca spoke with IT and learned that Conway had terminated his access to DARS on or about June 20, 2017. Conway later testified that he “determined that non-supervisory employees should not have access to DARS records belonging to other employees” and terminated the FSU police officers’ DARS access “in the interest of privacy.”
Fiocca noticed that his coworkers wouldn’t talk to him. Fiocca sent Conway “a series of messages containing insubordinate remarks.” Additionally, Fiocca sent a message to another supervisor complaining about his loss of access to DARS. The message included the statement, “You can talk to Conway dick head – yeah that’s what I called him – and tell and rat on me like a little effing pussy that you are.” In addition, Fiocca also told the supervisor, “Meet me one on one…and I will straighten your effing ass out.”
On March 18, 2018, Police Inspector Aaron Horne informed Fiocca that he was being transferred involuntarily from the FSU to the Delaware Valley Intelligence Center (DVIC) and his service weapon would be taken away. For two months, Fiocca worked at the DVIC. While at the DVIC, Fiocca was never given an assignment. Fiocca would show up for his overnight shift in a warehouse, the lights would go off, and he would “sit in the corner all by himself for eight hours in the dark.” During his shifts at the DVIC, Fiocca couldn’t use his phone or do anything. He “couldn’t even go to the bathroom because he couldn’t see where the bathroom was. There were no lights on.”
Fiocca brought a federal lawsuit against the City, alleging that the City retaliated against him in violation of his First Amendment rights and Title VII. A trial court rejected the lawsuit, concluding that Fiocca could not show the requisite “causal connection” between his protected activity – refusal to disclose the settlement of his prior lawsuit and the City’s adverse employment actions – and the termination of Fiocca’s access to DARS, removal of his gun, and his forced transfer to the DVIC.
The Court held that “to establish a causal connection, a plaintiff must proffer evidence of an employer’s inconsistent explanation for taking an adverse employment action, a pattern of antagonism, or temporal proximity unusually suggestive of retaliatory motive. Fiocca argues that he has established a causal connection by demonstrating an unusually suggestive temporal proximity between his refusal to disclose the settlement terms of his prior lawsuit and Defendants’ termination of his access to DARS, removal of his gun, and forced transfer to the DVIC. Temporal proximity provides an evidentiary basis from which an inference of causation can be drawn.
“Fiocca alleges that he engaged in a protected activity on March 22, 2017 when he refused to disclose to Conway the settlement terms of his prior lawsuit. However, Conway did not terminate Fiocca’s access to DARS until June 20, 2017. Moreover, it wasn’t until March 18, 2018 that Fiocca was transferred to the DVIC and his gun was removed.
“Almost three months passed between Fiocca’s refusal to discuss the prior lawsuit and Defendants’ first alleged adverse employment action – termination of Fiocca’s access to DARS. An intervening temporal period of three months between a protected activity and an adverse employment action is not unusually suggestive of retaliatory motive and is insufficient to establish the requisite causal connection.”
Fiocca v. City of Philadelphia, 2020 WL 7397794 (E.D. Penn. 2020).
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