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Justia › US Law › Case Law › Federal Courts › District Courts › Pennsylvania › Eastern District of Pennsylvania › 2002 › Bianchi v. City of Philadelphia
Bianchi v. City of Philadelphia, 183 F. Supp. 2d 726 (E.D. Pa. 2002)
U.S. District Court for the Eastern District of Pennsylvania - 183 F. Supp. 2d 726 (E.D. Pa. 2002)
183 F. Supp. 2d 726 (2002)
Robert C. BIANCHI, Plaintiff,
CITY OF PHILADELPHIA, et al., Defendants.
No. 99-CV-2409.
United States District Court, E.D. Pennsylvania.
January 7, 2002.
*727 *728 *729 *730 *731 Andrew F. Erba, Williams & Cuker, Philadelphia, PA, Nancy Abrams, Spector, Gadon & Kosen, PC, Philadelphia, PA, for plaintiff.
Michael Holmes, Micton Velez, City of Philadelphia Law Dept., Philadelphia, PA, for defendants.
ANITA B. BRODY, District Judge.
Plaintiff Robert Bianchi ("Bianchi" or "plaintiff") has filed suit against his former employer, the City of Philadelphia and the Philadelphia Fire Department ("City" or "defendant"), asserting multiple claims under 42 U.S.C. § 1983 (Title VII), the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951, et seq., the United States Constitution, and Pennsylvania common law. These claims all stem from a series of events occurring between March 1996 and November 1999 (after the commencement of this lawsuit). During this period, plaintiff claims he was sexually harassed by his co-workers and subsequently dismissed from his position in the fire department in retaliation for reporting the harassment. He also claims the defendants denied his right to procedural due process, to free speech, and to petition the courts, and that the defendant intentionally inflicted emotional distress upon him. Plaintiff filed his original complaint on May 11, 1999 and filed an amended complaint on October 19, 1999. Bianchi seeks declaratory and injunctive relief (a return to his job) as well as compensatory and punitive damages. On June 22, 2001, the defendants moved for summary judgment on all counts.
FACTUAL BACKGROUND
When considering the defendant's motion for summary judgment, the facts will be interpreted in the light most favorable to the plaintiff, the non-moving party. Plaintiff, Robert Bianchi joined the Philadelphia Fire Department in 1977. After seventeen years of service, he was promoted in 1994 to the rank of lieutenant. Immediately after his promotion, Bianchi worked as a "floater" in the system, that is he was not assigned to any particular fire station. After floating for a period of time, Bianchi began in a position at Fire Department Headquarters in the Technical Support Unit. On March 11, 1996, Bianchi was assigned to Ladder Company No. 2, Platoon A, located at the firehouse at 4th and Arch Streets. (Deposition of Bianchi, 16-18). Approximately six weeks after assuming command of the platoon, Bianchi began to institute changes in the discipline and training at the firehouse, some of which were not well received by members of the company. (Investigation Interview Record, Lt. Steven Nolan interviewing Bianci, 3).
In April 1996, the alleged sexual harassment began. Bianchi claims he discovered several used condoms that had been placed inside his desk drawer and began finding explicit homosexual playing cards, inside his desk, his uniform, and his running *732 gear. Other materials were placed in his desk drawer including advertisements for homosexual magazines. Additionally, Bianchi received a postcard at the firehouse insinuating that he was homosexual and found envelopes with the return address from the Gay Firefighter's Association in his desk. The harassers also allegedly placed either urine or feces on the sleeve of Bianchi's running gear, that he claims caused a fungal infection around his mouth. (Investigation Interview Record, Lt. Steven Nolan interviewing Bianchi, 4-7).
Though initially reticent, as these incidents continued Bianchi brought them to the attention of his supervisors. (Deposition of Bianchi, 37-43). At that point, no official action was taken, although more senior members of the department spoke to Bianchi's platoon, advising them that this conduct would not be tolerated. (Deposition of Bianchi, 43). Following the incident concerning Bianchi's running gear, plaintiff became more vociferous in his complaints and increasingly confrontational with other members of the fire department. On November 29, 1997, Bianchi informed Battalion Chief Robert Drennen that because matters were not being handled to his satisfaction by the department that he intended to take his complaints outside of the fire department and bring them to the attention of the police, the civil service commission, and his union. (Memorandum from Bianchi to Robert Drennen, November 29, 1997). Subsequently, during the month of December 1997, Bianchi was removed from the firehouse at 4th and Arch and was placed in a position with the Safety Office of the department. (Investigation Interview Record, Lt. Steve Nolan interviewing Bianchi, 7).
On January 20, 1998 a meeting was held and attended by Bianchi, the president of his union, an attorney representing Bianchi (hired by the union), and the battalion chief and special investigations officer, William Schweizer. (Deposition of Bianchi, 63-64). At that meeting the City notified Bianchi that he was removed from firefighting line duties and would be subject to physical and mental exams before he could be returned to full work. Additionally, Bianchi claims he was threatened by members of the fire department during this time. However, he returned to work on March 5, 1998 (Pl.'s Complaint, Par. 21-22). Upon his return, Bianchi claims members of the fire department once again threatened him; this time a captain encouraged him to remain in his administrative position so he would continue to be "safe," and an anonymous phone caller who stated that Bianchi's twin brother (also a member of the fire department) was in danger (Deposition of Bianchi, 86-90).
On April 7, 1998, Bianchi received a threatening letter smeared with feces at his home.[1] Bianchi promptly reported this *733 incident to the department and turned the letter over to Battalion Chief Schweizer. (Deposition of Bianchi, 46). At this point, an investigation into the incidents was launched and the fire department enlisted the aid of the police. A report issued on June 8, 1998, sustaining Bianchi's accusations of harassment and finding that the firehouse constituted a hostile work environment for him, but the investigation failed to identify the individuals responsible for the incidents. (Investigation Report of Mark Jones, June 8, 1998). The following month, in July 1998, Bianchi took a medical leave on the advice of his doctor. (Deposition of Bianchi, 95-97).
On October 2, 1998, Bianchi's own psychologist cleared him to return to work. (Deposition of Bianchi, 98). Dr. Hayes, the City's doctor, then told Bianchi that based on the report of the contract psychiatrist, Dr. Arce, he could return to work. However, he did not return to active duty and Dr. Hayes changed his position after a conversation with Bianchi's superiors in the fire department. (Deposition of Bianchi, 138-39) (Deposition of George Hayes, M.D., 19). Bianchi claims he was promised a meeting with the Fire Commissioner and his own doctor, after which he would be reinstated. Such a meeting was never scheduled and as a result Bianchi did not return to work at any point. (Deposition of Bianchi, 135-137).[2]
In March 1999, the fire department's human resources manager sent a letter to Bianchi informing him that his sick leave would expire in June and advised him of the procedures to avoid dismissal if he needed more time away from work. (Letter dated March 9, 1999, from Ronald Augustyn to Bianchi). In May 1999, plaintiff filed suit in this court. Subsequent to the initiation of this action, on November 4, 1999, the fire department sent another letter to Bianchi, advising him that all of his accumulated leave was about to expire. Under the Civil Service Regulations of the department, unless Bianchi requested a leave of absence without pay, he would be separated from the department. (Letter dated November 4, 1999 from Ronald Augustyn to Bianchi). Plaintiff took no such action and was deemed to have abandoned his position.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The role of the trial court is to determine whether there are issues with regard to material facts that warrant a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In making its determination, the court must consider the underlying facts in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that might be drawn from those facts. See Matsushita Elec. Indus. *734 Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Sempier v. Johnson and Higgins, 45 F.3d 724, 727 (3d Cir. 1995) (en banc). Summary judgment is appropriate if the court finds that the record "could not lead a rational trier of fact to find for the nonmoving party, [and] there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. 1348 (citation omitted).
The plaintiff's amended complaint includes eight counts against defendants the City of Philadelphia and the Philadelphia Fire Department.[3] Because plaintiff's first two allegations, alleging substantive violations of Title VII and the PHRA, encompass identical legal standards, I have considered them together, just as I have with Counts III and IV of the amended complaint, alleging retaliation under those same provisions.[4] Otherwise, I will consider summary judgment with regard to each count individually.[5]
Counts I and II: Title VII and PHRA Sexual Harassment
Title VII makes it "an unlawful employment practice ... to discriminate against any individual ... because of sex." 42 U.S.C. § 2000e-2(a) (1) (2000). To prevail on a hostile work environment claim, a plaintiff must demonstrate five elements. An employee must show (1) he or she suffered discrimination because of sex; (2) this discrimination was "pervasive and regular;" (3) some negative impact resulted from the discrimination; (4) the conduct would effect a reasonable person in a similar position; and (5) the employer's respondeat superior liability. Together these elements establish a case of sexual discrimination. Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir.1999) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990)).
Same-sex harassment is barred by Title VII. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (Title VII protections include "sexual harassment of any kind that meets the statutory requirements"). Recently, in Bibby v. Philadelphia Coca Cola Bottling Company, 260 F.3d 257 (3d Cir.2001), the Third Circuit articulated three ways in which a plaintiff may prove same-sex harassment. A plaintiff may prove same sex sexual harassment by (1) demonstrating a scenario in which the harassment is motivated by the aggressor's *735 sexual desire; (2) showing that a harasser displays hostility towards the participation of a particular sex in the workplace or performing a particular function; or (3) illustrating that the "harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender." Id. at 262-63.
Bianchi may only claim the protections of Title VII if he can demonstrate he was discriminated against because of sex. The City of Philadelphia asserts that it is entitled to summary judgment because Bianchi has failed to demonstrate that he suffered workplace discrimination because of his sex and therefore cannot establish a violation of the statute. Because Bianchi has not met his burden in demonstrating he suffered discrimination because of his gender, the defendant is entitled to summary judgment on Counts I and II of the amended complaint.
When considering the facts of this case in the light most favorable to the plaintiff, Bianchi does not fall into any of the three categories enumerated in Bibby. Nowhere does the plaintiff contend that the actions of his co-workers were motivated by any sort of sexual desire. While "when a gay or lesbian supervisor treats a same-sex subordinate in a way that is sexually charged, it is reasonable to infer that the harasser acts as he or she does because of the victim's sex." Bibby, 260 F.3d at 262, Bianchi's allegations clearly do not fit this scenario. Nor does Bianchi make the claim that the harassment he suffered fits within the second type of same-sex harassment described by the Third Circuit, where the illegal conduct results from discontent with a member of a particular gender filling a particular role in the workplace. Bianchi does not assert that his harassers were unhappy with the presence of a male fire lieutenant at Ladder 2.
Therefore, in order to satisfy his burden at the summary judgment stage Bianchi must demonstrate that his claim fits into the third category described in Bibby and that he was discriminated against because he failed to conform to a gender stereotype. The Supreme Court described this version of sexual harassment in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In Price Waterhouse, the plaintiff, a woman, had been denied partnership, in part because she was deemed to be too aggressive. In order to improve her chances in the future, her male supervisors advised her to lose her "macho" and "masculine" demeanor and instead to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry." Id. at 250, 109 S. Ct. 1775. The Court found that this conduct was in violation of Title VII and more generally that disparate treatment stemming from the use of gender stereotypes in the employment context was illegal. Id. at 251, 109 S. Ct. 1775.
Since the Supreme Court's decision, other circuits have analyzed same-sex, hostile environment claims under a Price Waterhouse standard. In Doe v. City of Belleville, 119 F.3d 563 (7th Cir.1997), vacated by 523 U.S. 1001, 118 S. Ct. 1183, 140 L. Ed. 2d 313, the Seventh Circuit found that harassment of a teenage boy by male co-workers, motivated by their belief that because he wore an earring he was not sufficiently masculine, was discrimination because of sex in violation of Title VII. Id. at 568. While the case was later vacated for reconsideration in light of Oncale, the analysis of the "because of sex" issue remains good law and is consistent with subsequent jurisprudence.
In the supplemental brief, the plaintiff likens his claim to a successful plaintiff in a recent decision by the Ninth Circuit. In *736 Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir.2001), the plaintiff claimed he was sexually harassed because he was "effeminate" and failed to conform to the male stereotype. Male co-workers regularly used female pronouns, describing the plaintiff as "she" and "her." While sometimes these same co-workers alluded to plaintiff's sexuality and called him "faggot," they also referred to him as a "female whore." Id. at 869-70. Because these terms clearly indicated that the harassers discriminated against the plaintiff because he "acted too feminine," the abuse was closely linked to gender and satisfied the "because of sex" requirement of Title VII. Id. at 874.
In this case, Bianchi has not met his burden by raising the inference that he suffered discrimination "because of sex." Based on the complaint itself, a reasonable finder of fact could infer several possible motivations for the conduct of the harassers, including that: (1) the harassers had some information that Bianchi had either engaged in homosexual conduct or made homosexual advances, leading them to believe he actually was a homosexual; (2) the homosexual insults had nothing to do with any belief about Bianchi's sexuality and instead were a manifestation of general discontent with his conduct at the fire station; (3) the conduct was a form of "horse play"regularly engaged in by firefighters; or (4) Bianchi possessed certain characteristics or traits that deviated from the "manly" stereotype and caused his harassers to torment him. While the first three fail to show harassment "because of sex," the last satisfies that requirement and would provide the grounds for relief under Title VII.[6] In the motion for summary judgment, the defendant adopts the first of these views, taken largely from Bianchi's own claims and deposition statements, admitting that he believed his tormentors believed (mistakenly) that he was a homosexual.[7] (Deposition of Bianchi, 62, 109).
After the defendant has advanced its theory and provided support for it, in order to survive summary judgment, plaintiff must come forward with enough evidence to raise the inference that his harassers targeted him because he failed to conform with their ideal of masculinity. At best it seems to me, although never explicitly articulated by the plaintiff in his supplemental memorandum, plaintiff asks me to make a series inferences in order to find that he is entitled to the protections of Title VII. This argument begins with the undisputed fact that he was called homosexual by his co-workers and taunted for allegedly being a homosexual. Implicit in those allegations, plaintiff could argue, is the fact that there was something unmanly about him which his harassers seized upon and used to cause his torment.[8] Therefore, *737 his claim falls within the Price Waterhouse and Nichols line of cases.
These links that Bianchi could draw between accusations of his homosexuality and some inherent unmanliness is too attenuated to meet his burden on summary judgment. In Price Waterhouse, City of Belleville, and Nichols the gender stereotyping was more explicit. In those cases there were direct comments made concerning the plaintiff's gender, rather than the plaintiff's sexuality. Here the only evidence that might directly link the harassment of Bianchi to a gender stereotype is the reference in the April 1998 letter to Bianchi's new position in the fire department as a "pussy job." A "pussy job" is easily understood as "a job for a woman," and implicates his masculinity. In conjunction with the general nature of the harassment, Bianchi might have made an argument that because he failed to conform to the manly stereotype and was regarded in some way as effeminate, his co-workers targeted him and harassed him "because of sex." Plaintiff, however, has not endorsed this theory of the case, and absent that support, I cannot find that plaintiff has demonstrated he suffered discrimination "because of sex."
Though in a supplemental memorandum submitted after the Nichols decision, the plaintiff argues that the harassers actions were based on an "offensive stereotype," Bianchi does not point to any specific characteristic, trait, or behavior which would indicate he was somehow unmanly or perceived to be so. Unlike the plaintiffs in Price Waterhouse, Nichols, and City of Belleville, Bianchi does not cite to any particular comments, actions, or other evidence in the record supporting his vague contention that the root of the harassment was that he acted (or was perceived to have acted) inappropriately for a male. Plaintiff fails to point to anything referring to gender stereotypes and his failure to live up to them. Though he recognizes the availability of the "offensive stereotype" claim, he foregoes his opportunity to actually make it to the court and as a result cannot survive summary judgment.
Before it can be deemed that the plaintiff has met his burden to survive summary judgment, he must present some evidence that the discrimination he suffered resulted from his failure to match the societal ideal of manliness. In denying a similar claim, the Second Circuit noted, "[w]e do not have sufficient allegations before us to decide [plaintiff's] claims based on stereotyping because we have no basis in the record to surmise that [plaintiff] behaved in a stereotypically feminine manner and that the harassment he endured was, in fact, based on his non-conformity with gender norms instead of his sexual orientation." Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir.2000). Not only has Bianchi failed to present evidence indicating he deviated from an ideal of manliness, he explicitly states his belief that the harassment was rooted in other causes. In his complaint and deposition, Bianchi stated that the harassment was based on the mistaken belief that he was a homosexual. (Amended Complaint, Par. 19, Deposition of Bianchi, 62, 109).[9] His unwavering *738 persistence in presenting his complaint as one concerning his alleged sexuality, rather than one concerning his alleged failure to meet a masculine ideal, defeats his Title VII harassment claim.
Despite the limitations imposed by Bibby, Bianchi offers an alternative theory to demonstrate the he suffered discrimination because of sex. He asserts that because the content of the harassing materials was somehow sexual, it is possible to infer that the discrimination he suffered is "because of sex." This, however, misconstrues the primary purpose of the law and goes beyond the parameters imposed by the Third Circuit. In Title VII cases, "the critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris v. Forklift Systems, Inc., 510 U.S. 17, 25, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). Though the materials and means of harassment contain sexual content and connotations, that does not automatically mean that the motivation for such harassment satisfies the "because of sex" requirement of the statute. See Oncale, 523 U.S. at 80-81, 118 S. Ct. 998 (plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimina[tion] ... because of ... sex'"). "The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit.... A more fact intensive analysis will be necessary where the actions are not sexual by their very nature." Andrews v. City of Philadelphia, 895 F.2d 1469, 1482, n. 3 (3d Cir.1990) (discussing the requirements for a hostile environment claim and what it means to be "because of sex"). The actions allegedly taken against Bianchi undoubtedly constitute harassment, but simply because the harassers used materials of a sexual nature, does not mean that Title VII bars the harassment. The Bibby decision makes it clear that only three means of showing same-sex harassment exist, and this is not one of them.
Because Bianchi, as a matter of law, cannot demonstrate that he was discriminated against because of his sex, he has not met his burden to survive summary judgment with regards to Counts I and II of the amended complaint. Even if plaintiff proved all of the allegations contained in the pleadings, he would still not present a claim that brings him within the auspices of Title VII. For this reason, I will grant the City of Philadelphia's motion for summary judgment on these counts.[10]
Counts III and IV: Anti-retaliation Provisions of Title VII and the PHRA
In addition to prohibiting discrimination based on gender, Title VII and the PHRA bar retaliation by an employer against an employee who has participated either as a complainant or witness in an action brought to enforce that legislation. An employer may not "discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (2000). Bianchi claims that his removal from active line duty, his placement in an administrative position, the department's refusal to reinstate him, and his eventual *739 separation were in retaliation for pursuing his harassment claim.
In order to establish his claim of discriminatory retaliation, Bianchi must demonstrate three elements: (1) that he engaged in conduct protected by Title VII; (2) that his employer subsequent to this conduct took adverse employment action against him; and (3) that there was a causal connection between the conduct protected by the statute and the employer's actions. See Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir.1995) (citations omitted). Courts have found action short of filing a lawsuit to be protected activity. Bringing an EEOC claim as well as writing an informal letter complaining specifically of discriminatory conduct can be sufficient. See Barber v. CSX Distribution Services, 68 F.3d 694, 701-02 (3d Cir. 1995). An employee does not need to demonstrate that the action he protests is actually a violation of Title VII, instead he need only to have a good faith belief that his behavior is protected conduct. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.1996). Moreover, in order to prevail on a retaliation claim, a plaintiff "need not prove the merits of the underlying discrimination complaint." Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir.1993). A verdict, therefore, can contain both a finding against a plaintiff on his Title VII discrimination claim, but for a plaintiff on his Title VII retaliation claim. See, e.g., Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir.1997); Riseman v. Advanta Corp., 2001 WL 1175126, No. 98-CV-6671, *1 (E.D.Pa. September 12, 2001).
It is undisputed that Bianchi made the required complaints.[11] The defendant argues that Bianchi did not engage in a protected activity because his substantive Title VII complaint is not covered by the statute and therefore he cannot possibly establish the first element of a retaliation claim. This assertion is erroneous as a matter of law. The complaints made by Bianchi fall within the protections of Title VII. As long as Bianchi has raised a reasonable inference that he possessed the requisite good faith belief that he was protesting conduct outlawed by Title VII, he has met his burden to survive summary judgment on this ground. The record contains sufficient evidence to sustain a finding of Bianchi's good faith belief that he had a legitimate claim for discrimination under Title VII. From a legally knowledgeable point of view, the Bibby decision, issued in August 2001 and long after the events in question, was the first definitive statement of law in the Third Circuit concerning the protection from sexual orientation discrimination through Title VII. See Bibby, 260 F.3d at 257. From a layman's point of view, the plaintiff's belief is also reasonable. Bianchi knew what was being done to him was not right; he knew it constituted harassment; he knew it was sexual in nature. His lack of knowledge concerning the precise parameters of Title VII does not remove his claims from the realm of good faith. While ultimately the question of "protected activity" will be decided by the finder of fact, Bianchi has met the necessary burden to survive summary judgment with regard to this element of his retaliation claim.
It is somewhat unclear whether or not the defendants argue that Bianchi has failed to satisfy the second element, that the employer took adverse employment action *740 against him. It is possible to infer this argument from the City's insistence that Bianchi's leaves, transfers, and eventual separation were voluntary. However, the parties vigorously dispute the course of events as well as the "voluntary" nature of these alterations. When considering the facts in the light most favorable to the plaintiff, Bianchi has satisfied his burden to survive summary judgment as he has raised a reasonable inference that adverse actions were taken against him. These actions include moving Bianchi from the 4th and Arch station to the safety office, failing to reinstate him after he had allegedly been medically cleared, and refusing to comply with the court's injunctive order.
As an alternate theory, the defendant focuses on the third element of the retaliation case and asserts that the Bianchi cannot demonstrate the necessary causal and determinative connection between his claims and the adverse employment action. Analyzing the relationship between the pursuit of the harassment claim and adverse employment action in a retaliatory discharge claim involves three steps: (1) the plaintiff must provide enough evidence to raise the inference that the defendant retaliated against him; (2) the defendant can show a legitimate nondiscriminatory reason for their actions; and (3) the plaintiff can show the defendant's reason is a mere pretext for their firing. See Waddell v. Small Tube Products, Inc., 799 F.2d 69, 73 (3d Cir.1986). The City asserts that based on the undisputed material facts of the case, no reasonable jury could conclude that a causal link existed between Bianchi's complaints about harassment and his severance with the fire department.
Bianchi has proffered enough evidence to raise the inference of retaliation. He has established that particular events of a harassing nature occurred and that he complained bitterly about those events both within and outside of the fire department. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989) (finding that plaintiff "unquestionably engaged in protected activity when he filed discrimination claims with ... the EEOC"). He has also shown that following those complaints he was transferred to a different job. The defendant, in turn, has offered a legitimate, nondiscriminatory motive for any adverse employment consequences that the plaintiff suffered. The City claims the adverse employment consequences suffered by plaintiff resulted from his own mental instability, his conflicts with co-workers, and the failure to comply with departmental procedures for reinstatement. To survive summary judgment, then Bianchi must offer enough evidence to permit a reasonable factfinder to either infer that the legitimate reason offered by the employer is untrue, or determine that an "invidious discriminatory reason was more likely that not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir.1994).
A plaintiff may demonstrate the causal link between the protected activity and the adverse employment action by showing the "temporal proximity" between the protected activity and the adverse employment consequence. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997). Even where the plaintiff fails to show a close chronological relationship between the conduct and the consequence, plaintiff may illustrate a connection between the two. A complaint of harassment may cause a deteriorating relationship between the employer and employee which helps establish a pattern of antagonistic behavior followed through to and remaining consistent with retaliatory conduct. See Robinson v. Southeastern Pennsylvania Transportation Authority, 982 F.2d *741 892, 895 (3d Cir.1993). In considering a retaliation claim, a court should look not only at "individual incidents, but on the overall scenario." Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990).
Bianchi has met his burden to survive summary judgment on this claim. In considering the facts in the light most favorable to him, Bianchi has presented sufficient evidence to raise the inference that his complaints about harassment, and not his mental health, caused the events leading up to his eventual termination from the fire department. It is undisputed that at some point in January 1998, Bianchi was placed on no-duty status and upon his return was assigned to the safety office of the Fire Academy. On January 20, 1998 a meeting was held at which plaintiff, the president of his union, an attorney representing plaintiff (hired by the union), and the battalion chief and special investigations officer, William Schweizer, were present. (Deposition of Bianchi, 63-64). At that time, Bianchi was informed of the department decision to initially remove him from active duty and place him in an office job. Though the City contends that the decision was based on concerns for plaintiff's health and safety, on November 29, 1997, Bianchi had threatened to report the incidents of harassment and the department's inattention to them to the police, his union, and the civil service commission. (Memoranda dated November 29, 1997 from Bianchi to Commissioner Hairston and Battalion Chief Drennen). The parties agree that only several days before this meeting Battalion Chief Schweizer had been contacted by Thomas O'Drain, vice-president of Local 22, plaintiff's union, on behalf of Bianchi. The close proximity between the initial involvement and an outside organization makes it possible to conclude that the real motive for moving Bianchi was to retaliate for enlisting the aid of his union. The "temporal proximity" of Bianchi's threat to complain to outside organizations and his removal from active duty is sufficient to raise the inference that the defendant was not truly motivated by their concern about the mental stability of the plaintiff.
Similar inferences might be drawn from the requirements imposed on Bianchi before he was permitted to return to duty. Bianchi contends that the department created additional, unnecessary hoops in order to prevent him from rejoining the department. Though the department claims Bianchi failed to comply with the standard requirements mandated by the City's Medical Director, Dr. Hayes, the plaintiff presents evidence that atypical things happened concerning his return to work. After his own doctor and the City's contract psychiatrist, Dr. Arce, had cleared him to return to work, Hayes agreed with that decision. However, he subsequently disregarded it. (Deposition of Bianchi, 138-39). Though not certain, it is possible that Dr. Hayes spoke with Battalion Chief Schweizer during this same period of time (Deposition of George Hayes, M.D., 19). Less than one month after Bianchi had been deemed fit to return to work, Dr. Hayes wanted Bianchi to submit to additional testing and submit other medical records before issuing clearance for his return to active duty (Letter dated November 10, 1998 from Dr. George Hayes to Bianchi).[12] It is not clear whether this sequence of events was unusual or simply standard department procedure. However, when considering the facts in the light most *742 favorable to the plaintiff, its close link to repeated complaints of harassment and filings with the EEOC on September 1, 1998 again raises the inference of irregularity. Considering the "overall scene," including the antagonistic pattern of behavior and somewhat hostile relationship between the City and Bianchi, it is reasonable to conclude that the City refused to return plaintiff to work based upon retaliatory motives rather than concerns about his psychological well-being.[13]
In deciding whether to grant summary judgment, the key question "remains whether a reasonable jury could conclude that [plaintiff] was discharged because she engaged in protected activity." Aman, 85 F.3d at 1085. Bianchi's activities were protected activity. Based on the record before me, I conclude that Bianchi has presented enough evidence from which a factfinder could infer that defendant's contentions of legitimate, non-retaliatory purposes is pretextual and that he was discharged for pressing his sexual harassment claim. Therefore, I will deny summary judgment on Counts III and IV.
Count V-A: Constitutional Due Process Rights Under § 1983
Bianchi also claims that his civil rights were violated as he was deprived of procedural due process pursuant to 42 U.S.C. § 1983. In order to state a successful claim for violation of procedural due process pursuant to that statute, the plaintiff must demonstrate (1) an interest included within the Fourteenth Amendment's protections for property and liberty and (2) that the state deprived him of that protected interest without requisite notice or some type of hearing. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570 n. 7, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Independent Enterprises Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1177 (3d Cir.1997). Not all public employees have a property interest in their employment. It is more than a "unilateral expectation" of continuing employment and instead must be a "legitimate claim of entitlement." Roth, 408 U.S. at 577, 92 S. Ct. 2701. An express contract, a tenured position, or a "clearly implied promise of continued employment" may create this right. Id. at 576, 92 S. Ct. 2701. The legislature can also create this right by statute. See Larsen v. Senate of Commonwealth of Pennsylvania, 154 F.3d 82, 92 (3d Cir.1998); Carter v. City of Philadelphia, 989 F.2d 117, 120 (3d Cir. 1993).
Once the plaintiff has established a legitimate, protected property interest, he or she must then show that the state failed to provide adequate protections prior to the deprivation of that right. Generally, this process takes the form of a pre-deprivation hearing, though in some emergency situations, the employer can postpone the hearing until after the deprivation. See Boddie v. Connecticut, 401 U.S. 371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). The extent of protections afforded vary on a case by case basis and can be determined by balancing the factors articulated by the Supreme Court in Mathews v. Eldridge. In determining the appropriate process, the court must consider (1) the liberty or property interest at stake in the matter; (2) the value of a procedure in protecting that right; and (3) the efficiency interests of the government in providing the procedure. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
*743 In the instant case, the City contends that Bianchi has failed to demonstrate that he had a protected property interest in his job with the fire department. Defendants implicitly concede that at one point in time Bianchi did have a protected property interest in his job as a twenty year veteran of the fire department. The Civil Service Regulations of the City of Philadelphia support this concession as the regulations create procedures to be followed prior to termination or adverse employment consequences in a variety of situations. See Robb v. City of Philadelphia, 733 F.2d 286, 292-93 (3d Cir.1984) Defendants argue, however, that Bianchi could have no reasonable expectation of continuing employment in light of the letters sent to his home concerning expiration of his leave time. (Letters dated March 9, 1999 and November 4, 1999 from Ronald Augustyn to Bianchi). In failing to comply with the requirements imposed by Dr. Hayes or by not seeking a medical leave of absence, Bianchi forfeited the "legitimate claim of entitlement" required by Ross and voluntarily abandoned his position.
Bianchi has presented enough evidence to raise the inference that he did not voluntarily abandon his position. Plaintiff claims that the evidence shows the requirements imposed by the fire department, rooted in its retaliatory motive, compelled him to abandon his position. Though the City contends that they clearly explained the requirements for return (Affidavit of George Hayes, M.D., June 18, 2001), Bianchi claims that the necessary steps were never explained to him. (Deposition of Bianchi, 138-39). Even if the City definitively showed that they had told Bianchi precisely what he needed to do, because Bianchi has raised the required inference that these practices were aberrant and designed to target him, their imposition would amount to constructive discharge. Bianchi's situation is comparable to that of an employee forced to submit a resignation under duress. While the assumption is that generally a resignation is a valid relinquishment of the right to employment, when coerced or a product of agency deception, the law treats it as though the employer terminated the employee. See, e.g., Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587-88 (1975). Further, at the time the City began to advise Bianchi of the impending end of his leave time, the parties do not dispute that he had already secured an injunction ordering his return to work and the City had not reinstated him. These undisputed facts, again raise the reasonable inference that the fire department had already decided to terminate Bianchi's employment. Bianchi's initiation of the current lawsuit in federal court, filed on May 11, 1999, prior to his official "separation," from the fire department further supports the inference that Bianchi did not voluntarily abandon his employment and therefore relinquish his legitimate claim of entitlement to it.[14]
Though Bianchi has demonstrated a protected interest in his job sufficient to survive summary judgment, he must also raise a reasonable inference that the procedure followed by the department in effecting his separation fails to satisfy constitutional due process requirements. In response to the defendant's motion for summary judgment, Bianchi simply contends *744 that "he was denied due process when the City refused to reinstate him." (Pl.'s Resp. to Def.'s Mot. for Summ. J., 74). The City argues it is entitled to summary judgment on this claim because they provided Bianchi with notice of the requirements for reinstatement. Bianchi's failure to take advantage of the numerous opportunities to secure reinstatement, of which the defendant fully advised him, caused his separation, not any action on the part of the defendant. During this same time, the City contends it remained in full compliance with the appropriate civil service regulations.[15] (Letters dated March 9, 1999 and November 4, 1999 from Ronald Augustyn to Bianchi). The Philadelphia Civil Service Regulations, on which defendants rely, describe the provisions and processes concerning leaves of absence and leaves of absence without pay and carry the same force and effect as the law in governing the employment relationship between the City and its workers and deviation from them amounts to a violation of the law. See Robb, 733 F.2d at 292-93 (3d Cir.1984).
Plaintiff, however, insists he did not have this opportunity to secure his return to work. First, he argues that the defendant constructively discharged him prior to November 9, 1999, the date of his official "separation" and therefore the cited civil service regulations are inapplicable to him. Though Bianchi admits that initially he took a voluntary medical leave of absence from his position, (Deposition of Bianchi, 79), that leave became involuntary when the City refused to reinstate him after he received medical clearance from his own physician to return and got a court order requiring his reinstatement that defendants did not honor. Therefore, he was no longer on a leave of absence at the point his "separation" from the fire department became official.[16] Even if the City properly followed the regulations and those regulations actually applied to his situation, the plaintiff argues the defendant has not satisfied its obligations pursuant to due process requirements. Because the regulations place the decision of whether or nor to grant leave in the hands of a single individual, with no right to a hearing, the regulations violate due process of their face. Finally, Bianchi counters the defendant's assertion by contending he had no notice of the requirements for reinstatement. (Deposition of Bianchi, 138-139).
Plaintiff's due process claim and the defendant's response to it are unclear. Based on the arguments contained in the pleadings and the evidence on the record, I am unable to conclude that the defendant unquestionably satisfied the requirements of procedural due process. Therefore, it is *745 inappropriate to grant summary judgment at this time and I will deny the defendant's motion for summary judgment on Count V-A. However, I am willing to revisit this issue prior to trial in the form of a motion in limine, at which time I expect both plaintiff and defendant to have more clearly articulated their due process claims.
Count V-B: Violation of Constitutional Free Speech Rights
Plaintiff brings a second claim under 42 U.S.C. § 1983, alleging a substantive due process violation, namely that the defendant violated his constitutionally protected right of free speech. Plaintiff must demonstrate two things in order to prevail on this claim: (1) that the speech in question falls within the protections of the First Amendment and (2) that the expressive activity motivated the defendant to discharge, or take other adverse employment action, against the plaintiff. See Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir.1997). The First Amendment does not protect all speech and when the government acts as an employer, it may constitutionally limit some speech in the workplace. However, a public employee does not forfeit all First Amendment protections. If the speech addresses a matter of public concern and also prevails in a balancing of its value against its disruptive effects, then it falls within the safeguards of the Constitution. See Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).
Plaintiff must first show that the speech in question was a matter of public concern. See Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). While courts have interpreted "matters of public concern" broadly, its meaning is not without limits. In considering what constitutes such a matter, courts may look to the "content, form, and context" of the speech. Holder v. City of Allentown, 987 F.2d 188 (3d Cir.1993) quoting Connick, 461 U.S. at 147-48, 103 S. Ct. 1684. If the speech relates to something that can be "fairly considered as relating to any matter of political, social, or other concern to the community," then it is a matter of public concern. Id. at 147, 103 S. Ct. 1684. The Third Circuit instructs that where a public or elected official is the subject matter of the speech, it is more likely to relate to this process and therefore is more likely to be protected by the First Amendment. See Azzaro 110 F.3d at 968. In Azzaro, the plaintiff was discharged from her job with the county after reporting an incident of sexual harassment by the assistant to an elected county commissioner. The plaintiff, however, never took her complaint public, and asked her supervisors, to whom she had reluctantly reported the incident, to keep the grievance confidential. Still, the court found that Azzaro's communications were a matter of public concern because the content of her complaints, if made public, "would be relevant to the electorate's evaluation of the performance of the office of an elected official," and touched on issues of public trust. Id. at 978. In so holding, the decision expressly rejected a number of distinctions that other circuits had adopted to differentiate between matters of public and private concern and opted instead for a more flexible approach to First Amendment retaliation claims.[17]
*746 Though the Third Circuit refused to limit itself to a particular test, the court also cautioned against the uniform acceptance of sexual harassment complaints as a matter of public concern per se. However, the court did find that an individual instance of sexual harassment by a supervisor who was also a public authority was, in this case, sufficiently related to self-governance so as to constitute a matter of public concern.[18]See id. at 980. Judge Becker issued a concurring opinion, reiterating the idea that harassment claims do not qualify automatically as matters of public concern and illuminating a number of circumstances in which a claim will not be protected. These include the single-incident of harassment by a co-worker rather than a supervisor referred to in the majority opinion, and also instances where "the offender is a non-supervisory co-worker and the incident is more than `isolated,' though neither egregious or repeated with great frequency." Id. at 981 (Becker, C.J., concurring). Other "non-public" matters include instances where the "`powers that be'" remain unaware of the harassment, where the action complained of is minor or suspect, where the credibility of the claimant is doubtful, or some combination of these factors. Id.
The allegations and evidence in the instant matter do not neatly fall into one of the above mentioned categories. Bianchi presents evidence of recurring, serious incidents of harassment by his co-workers of which he made his superiors aware in 1997. Though the City makes much of Judge Becker's reference to instances of harassment by a non-supervisory co-worker, they conveniently omit the language in the same passage that specifies that the harassing incidents be less than egregious and that they not be recurring in order to be considered private concerns. When members of the fire department are spending their time placing used condoms in co-workers drawers, drafting fictitious letters, and threatening their co-worker either because they believe he is gay or are unhappy with his leadership style, it is a matter of public concern. Not only was Bianchi speaking out against his own treatment, he exposed conduct that might cause a public outcry about the general fitness and discipline within an important public institution. Even though the harassment he experienced may have fallen outside of the protections of Title VII, Bianchi was still entitled to voice his concerns about practices within the Philadelphia Fire Department and in doing so engaged in conduct protected by the First Amendment.
Once it is determined that plaintiff's speech is a matter of public concern, in order to be protected, it must prevail in the balancing of the employee's interest in speaking out and the level of public concern against the employer's interest in providing efficient service. Id. at 980. Bianchi possessed an important interest in airing his grievances both within and outside of the fire department. His harassers engaged in a serious and repetitive pattern of conduct which disrupted his job performance and his life. As noted, the public has an important interest in assuring that vital institutions like the fire department function fairly and effectively. The defendant *747 has not proffered any example of how Bianchi's speech disrupted the efficient functioning of the department. While the defendants spent time and resources investigating the claim, they do not contend that the efficiency gains took precedence over Bianchi's free speech rights. Therefore, Bianchi has demonstrated that his conduct constitutes protected activity within the parameters of the First Amendment.
Under Azzaro, deciding that the plaintiff engaged in protected conduct does not end the inquiry as to whether the plaintiff withstands the motion for summary judgment. Plaintiff must also advance sufficient evidence that his reports of harassment caused the adverse employment action he suffered Bianchi were motivated by his reports of harassment. Id. at 975. The defendant challenges Bianchi's proffered reason for his eventual separation from the department, again advancing the theory that Bianchi's mental fitness and his refusal to comply with requirements for reinstatement, caused his dismissal. As discussed in relation to Bianchi's Title VII retaliation claim, see supra, the temporal proximity and general sequence of events raise the inference that he was discharged for speaking out concerning the harassment he suffered. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997). Because the plaintiff has engaged in protected activity and because he has raised a reasonable inference this activity motivated the fire department to discharge him, summary judgment is inappropriate. The City of Philadelphia's motion for summary judgement on Count V-B will be denied.
Count VI: Violation of Constitutional Right to Petition the Courts
In a separate count, Bianchi alleges that the defendants violated his constitutional right to petition the courts in violation of 42 U.S.C. § 1983. The Supreme Court has consistently held that the right to access the court system falls under the First Amendment protections, namely as a part of the right to petition the government. See Anderson v. Davila, 125 F.3d 148 (3d Cir.1997) citing California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972). In their summary judgment motion, the defendants do not specifically address this count, nor does the plaintiff in his response. I assume that this count refers specifically to the state court action instituted by Bianchi to obtain reinstatement, while the previous count refers more generally to his public complaints about sexual harassment.
While the counts are separate, the analysis employed to consider the claims is identical. The plaintiff engaged in protected conduct when he sought relief in the courts from the harassment and alleged retaliation. The causal connection between these actions and the adverse consequences suffered by Bianchi cannot be decided on a motion for summary judgment because as noted throughout this opinion, the plaintiff has presented sufficient evidence to raise the inference of retaliation, rendering summary judgment inappropriate. Therefore, the defendants' motion for summary judgment is denied with respect to Count VI, the violation of the First Amendment right to petition the courts.
Count VII: Intentional Infliction of Emotional Distress
In the final count of his complaint, Bianchi alleges that the defendants committed the intentional tort of intentional infliction of emotional distress, in violation of the Pennsylvania common law. The defendants again move for summary judgment, contesting the factual allegations, but more compellingly, based on their governmental *748 tort immunity. Pennsylvania law creates a generalized governmental immunity for all injuries to people and property and enumerates eight limited exceptions to this immunity. See 42 Pa.C.S. § 8541. These exceptions concern (1) operation of a motor vehicle; (2) personal property in the care, custody, or control of a local agency; (3) real property in similar care; (4) trees, traffic controls, and street lights; (5) facilities providing utility service; (6) streets; (7) sidewalks; and (8) care, custody, and control of animals. See 42 Pa.C.S. § 8542.
It is apparent that Bianchi's claims do not fall within any of the exceptions to governmental immunity. While the plaintiff correctly describes the elements of the intentional infliction of emotional distress tort, he does not address the immunity issue. I can only conclude this is because there is none. Because under Pennsylvania law the defendants are entitled to immunity, I will grant their motion for summary judgment on Count VII of the plaintiff's amended complaint.
AND NOW this day of January 2002, it is ORDERED that:
(1) The plaintiff's complaint is DISMISSED on all counts against the Philadelphia Fire Department.
(2) The defendants' motion for summary judgment is GRANTED as to the following counts of the plaintiff's amended complaint: Count I, violation of the Civil Rights Act of 1964; Count II, violation of the Pennsylvania Human Relations Act; and Count VII, the intentional infliction of emotional distress.
(3) The defendants' motion for summary judgment is DENIED as to the following counts of the plaintiff's amended complaint: Count III, violation of the anti-retaliation provision of the Civil Rights Act of 1964; Count IV, violation of the anti-retaliation provision of the Pennsylvania Human Relations Act; Count V-A, violation of plaintiff's constitutional due process rights; Count V-B, violation of plaintiff's constitutional free speech right; and Count VI, violation of plaintiff's constitutional right to petition the courts.
[1] The letter stated:
HERE IS SOME SHIT FOR YOU ASSHOLE. WE HEAR YOU ARE BACK TO WORK IN A PUSSY JOB. YOU WILL NOT BECOMING TO YOUR REGULAR JOB ANYMORE, WE WILL SEE TO THAT DON'T GET TO COMPORTABLE BECAUSE WE WILL NOT BE HAPPUY UNTIL WE GET YOU OUT FOR GOOD!!!! YOU AND YOUR BROTHER ARE TWO QUEERS LIVING TOGETHER WE PREFER WOMAN. YOUR BROTHER IS NEXT. SO TELL ME WHAT IT IS LIKE TO JERK OFF TOGETHER. YOU DO NOT HAVE ONE FRIEND IN THE DEPARTMENT AND YOU ARE NOT SHIT!!! YOU AND YOUR BROTHER WILL BE GONE SOON. DONT DRIVE AROUND TO MUCH AND DONT THINK YOU WILL BECOMING BACK!!!!
Plaintiff's pleadings show some confusion with regard to the date of this letter. In the complaint, the depositions attached to the pleadings, and in the defendant's pleadings, the date is given as 1998. However, in the plaintiff's response to the summary judgment motion, the letter is placed in 1997. Because in the majority of pleadings and considering the chronology of events in the light most favorable to the plaintiff, for purposes of this motion, the letter was written in 1998.
[2] Bianchi obtained an injunctive order in the Philadelphia Court of Common Pleas, requiring the fire department to allow him to return to work in February 1999, but the defendants refused to reinstate him. (Deposition of Bianchi, 108). Defendants contend that this decision was ultimately overturned by the Pennsylvania Commonwealth Court on December 4, 2000. (D's Motion for Summary Judgment, 23). While no independent verification of these decisions has been submitted, plaintiff does not dispute that the decision to issue the injunction was reversed.
[3] The headings in the amended complaint only list Counts I through VII. However, there are two distinct counts both labeled Count V. I have assumed this is an error and have, for purposes of this motion assigned new designations to the two Counts V. The first Count V is now Count V-A (due process) and the second Count V (free speech) is now Count V-B.
[4] Pennsylvania courts look to the federal courts' interpretation of Title VII and other civil rights legislation in interpreting the Pennsylvania Human Relations Act. See Kryeski v. Schott Glass Technologies, Inc., 426 Pa.Super. 105, 626 A.2d 595 (1993). Federal courts also treat these pieces of legislation as embodying identical standards. See Latch v. Southeastern Pennsylvania Transp. Authority, 984 F. Supp. 317, 319 (citing Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir.1996)).
[5] As a preliminary matter, Philadelphia Fire Department argues that it should be dismissed from the case because it cannot be sued as a distinct entity from the City of Philadelphia. Plaintiff does not contest this and the law is clear. Municipal agencies of the City do not have a separate corporate existence and "all suits growing out of their transactions ... shall be in the name of the City of Philadelphia." 53 P.S. § 16257. Because the Philadelphia Fire Department cannot be named as a defendant, Bianchi's sole recourse is against the City of Philadelphia. Therefore, all counts as they apply to the fire department will be dismissed.
[6] Because the plaintiff's complaint raised this as one possible inference, it would have survived a motion to dismiss for failure to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b) (6). However, to survive a motion for summary judgment, the plaintiff faces a higher burden and must come forward with evidence to counter the assertions of the moving party that amounts to more than a "mere scintilla" of evidence to counter the moving party's claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
[7] Evidence in the record also supports the "horseplay" theory. After conducting an investigation of the events and interviewing other members of the department, Inspector Mark Jones noted that other, similar incidents had occurred and that the men regarded it as "harmless clowning." (Investigation Report of Mark Jones, June 8, 1998).
[8] In the supplemental memorandum, plaintiff correctly identifies the "offensive stereotype" argument. However, he continues to adhere to the notion that the offensive stereotype related to homosexuality, rather than a deviation from gender expectations.
[9] Though plaintiff contests the defendant's assertion that he had difficulty getting along with his co-workers and responded inappropriately in particular situations, he does acknowledge there was some resistance in the station house to his methods of leadership and discipline. (Deposition of Bianchi, 24-25). This is another potential source of the harassment directed against Bianchi, and an equally insufficient one to prevail on a Title VII claim. The statute does not provide a remedy for harassment when the animosity stems from workplace politics. See Brown v. Henderson, 257 F.3d 246, 255 (2d Cir.2001) (noting that cruel and vulgar behavior rooted in rivalry attributable to union election does not fall within the protections of Title VII).
[10] Because the plaintiff does not satisfy the first prong of the hostile environment claim, I will not examine whether he meets the remaining four requirements.
[11] Bianchi complained bitterly about his treatment to his superiors (Memorandum dated November 29, 1997 from Bianchi to Fire Commissioner Hairston), to his union (Deposition of Bianchi, 59), to the courts (Deposition of Bianchi, 108), and to the EEOC (EEOC Notice of Charge of Discrimination, September 2, 1998).
[12] The results of the additional testing are not relevant to this inquiry. Rather, it is the decision to require additional testing after a psychiatrist had decided it was proper for Bianchi to return to work that raises the inference of pretext.
[13] These examples are not intended as an exclusive list of events which raise an inference of pretext but instead illustrate that plaintiff has advanced sufficient evidence to sustain his burden on summary judgment.
[14] The City urges that a decision of the Unemployment Compensation Board of Review, from April 11, 2000, finding that Bianchi was ineligible for benefits because he had "voluntarily" left work, should be given preclusive effect on this issue. That contention is incorrect as a matter of law. See Swineford v. Snyder County of Pa., 15 F.3d 1258, 1266-69 (3d Cir.1994).
[15] The provisions provide that any employee absent without a valid leave will be deemed to have abandoned his position and tendered a resignation unless within ten days, he provides information which renders his absence excusable, as determined by the director of the civil service commission. (Philadelphia Civil Service Regulations, 22.01). The next provision provides the opportunity to secure a leave without pay, again subject to the approval of the director. The denial of a request for such leave amounts to a separation from the employer. However, an employee has thirty days to appeal the denial to the commission. (Philadelphia Civil Service Regulations, 22.02, 22.021).
[16] Though the Commonwealth Court eventually overturned this order, the City appealed it without a stay (Deposition of Bianchi, 108). The parties have provided virtually no information about the injunctive order, but based on what little evidence made a part of the record, the City chose to remain in contempt of a court order while filing their appeal, rather than return the plaintiff to work. This resistance to reinstating the plaintiff raises the inference that the continuation of his leave was not voluntary.
[17] The Third Circuit rejected the following distinctions: (1) the public employee as employee versus the public employee as citizen approach used by the Tenth and Eleventh Circuits; (2) the employee attempting to take his or her grievances public compared to the employee who wished to keep the speech quiet as used by the Seventh Circuit; and (3) the Second Circuit's approach to sexual harassment complaints which protects only those claims indicating a systematic problem or widespread corruption. Azzaro, 110 F.3d at 979-80.
[18] Azzaro claimed that when she went to meet with a co-worker, he shut the office door and attempted to pull open the lapels of her blazer, and put his hand inside her jacket, successfully untucking her shirt from her pants. He then unzipped his own pants and placed his hands inside. When Azzaro yelled loudly, her harasser stopped his conduct immediately and resumed a professional demeanor. See id. at 970.


Colossians 3:3 (KJV); For ye are dead, and your life is hid with Christ in God.
As a regenerated being in Christ, you are dead to the flesh and the world. Your real life is in Christ.
This death is both by faith and consequently also by experience.
But what really is this spiritual death?
On one part, it is death to the riches of this world, the treasures of this life and the pleasures of the body.
The other part of this death is when God kills your lust.
For example, one might consider it a noble thing to desire the anointing, depth of revelation of God's Word and a deeper manifestation of His presence.
God wants you to have all these but He does not wish to give them to you because you lusted for them.
This lust is when one desires and craves for spiritual things without divine purpose along with the desire.
In its way, it points to the fact that a man is still alive in the flesh although he desires something spiritual.
The danger of such a man is that when he receives these spiritual graces out of lust, he will use them for fleshly and carnal purposes because he is not truly dead in the flesh.
Beloved saint, allow the Spirit and the Word of God to work in you until you are dead to the flesh and no lust for the spiritual things can be found in you.
May you yield to these death experiences because it is in them that you truly live unto God.
Allow the Spirit and the Word of God to work in you until you are dead to the flesh and no lust for the spiritual things can be found in you. May you yield to these death experiences because it is in them that you truly live unto God.
PRAYER: My Lord, I thank You for this Word. What a blessed truth, that I can only die to the flesh so that I may live in You. I yield my spirit to You every day that I may decrease and You may increase. Consume me Lord until I am no more. In Jesus' name. Amen.


New Delhi, Dec 31 The second batch of Supplementary Demands for Grants for 2018-19 for gross additional expenditure of Rs 85,948.86 crore, which includes Rs 41,000 crore for recap of the Public Sector Banks (PSBs), was passed by voice vote in the Lok Sabha on Monday amid din.
The supplementary demand was tabled by Finance Minister Arun Jaitley on December 20 seeking Parliament's approval for additional expenditure of Rs 85,948.86 crore.
Responding to a debate over it, Jaitley said the Modi government had enabled connecting villages by building roads and ensured that there wasn't any villages left where there is no electricity.


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Twitter hashtag for this meeting: #KStcell
T Cell Dysfunction, Cancer and Infection (A3)
Scientific Organizers: Daniel C. Douek, W. Nicholas Haining and Jedd D. Wolchok
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Listen, this isn't easy for me to say, so I'm just going to come out with it – it's time for you to get serious about your home moonshine production. What you can whip up in your bathtub just isn't going to cut it anymore, which is why you should think about looking into the legit 10 Gallon Moonshine Still from The Whiskey Still Company.
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Alstom has been awarded a contract by DaeMyoung Energy Corporation, a subsidiary of DaeMyoung GEC, a large engineering and construction services company in South Korea, to supply wind turbines to the Gowon wind farm. The wind farm is located in Gangwon province approximately 170 km east of Seoul. Alstom will supply and supervise the installation and commissioning of 6 units of the ECO 110 wind turbines with 90m towers, each with an output of 3 MW. When operational, the wind farm will have a capacity of 18 MW.
The ECO 110 wind turbine is equipped with Alstom's Pure Torque technology which protects the transmission chain by diverting unwanted stresses to the turbine's tower and thereby optimising performance. Exclusively developed by Alstom and deployed throughout its entire range of wind turbines, this technology increases the reliability and durability of each turbine. In addition, the nacelle's specific design, made up of three, large independent elements, facilitates maintenance operations and safety inside the machine.
The Gowon wind farm, the second contract awarded to Alstom in South Korea in 2014, will be fully operational by the end of 2015 and is set to support the country's 2020 target to produce 20% of the total electricity generated from renewable sources. With a population exceeding 50 million and limited domestic sources, coupled with huge demand, South Korea relies on imported sources for 96% of its energy supply.
The Gowon wind farm will be operated by joint owners Eurus Energy Holdings Corporation (Eurus Energy) and DaeMyoung Energy Corporation. Eurus Energy is a leading Independent Power Producer in Japan with over 2,000 MW in operating assets. Alstom has supplied wind turbines for Eurus Energy's Satomi wind farm and is currently supplying turbines to the Kawazu wind farm in Japan, as well as to the Gimnyeong wind farm in South Korea.


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Microbial Cell, Vol. 2, No. 8, pp. 299 - 301; doi: 10.15698/mic2015.08.220
Membrane depolarization-triggered responsive diversification leads to antibiotic tolerance
Natalie Verstraeten, Wouter Joris Knapen, Maarten Fauvart, Jan Michiels
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Centre of Microbial and Plant Genetics, KU Leuven – University of Leuven, 3001 Leuven, Belgium.
Keywords: Obg, ObgE, CgtA, YhbZ, persistence, antibiotic tolerance, (p)ppGpp, HokB, toxin antitoxin, responsive diversification, membrane depolarization.
Received originally: 08/07/2015 Accepted: 13/07/2015 Published: 24/07/2015
Jan Michiels, Centre of Microbial and Plant Genetics, Department of Microbial and Molecular Systems, KU Leuven - University of Leuven; Kasteelpark Arenberg 20 box 2460, 3001 Leuven, Belgium Jan.Michiels@biw.kuleuven.be
Conflict of interest statement: The authors declare no conflict of interest.
Please cite this article as: Natalie Verstraeten, Wouter Joris Knapen, Maarten Fauvart, Jan Michiels (2015). Membrane depolarization-triggered responsive diversification leads to antibiotic tolerance. Microbial Cell 2(8): 299-301.
Verstraeten N, Knapen WJ, Kint CI, Liebens V, Van den Bergh B, Dewachter L, Michiels JE, Fu Q, David CC, Fierro AC, Marchal K, Beirlant J, Versées W, Hofkens J, Jansen M, Fauvart M, Michiels J. Obg and membrane depolarization are part of a microbial bet-hedging strategy that leads to antibiotic tolerance. Mol. Cell 2015 Jul 2; 59 (1): 9-21.
| Crossref | Pubmed |
Bacterial populations are known to harbor a small fraction of so-called persister cells that have the remarkable ability to survive treatment with very high doses of antibiotics. Recent studies underscore the importance of persistence in chronic infections, yet the nature of persisters remains poorly understood. We recently showed that the universally conserved GTPase Obg modulates persistence via a (p)ppGpp-dependent mechanism that proceeds through expression of hokB. HokB is a membrane-bound toxin that causes the membrane potential to collapse. The resulting drop in cellular energy levels triggers a switch to the persistent state, yielding protection from antibiotic attack. Obg-mediated persistence is conserved in the human pathogen Pseudomonas aeruginosa, making Obg a promising target for therapies directed against bacterial persistence.
Over seven decades ago, Joseph Bigger observed that a small number of cells within a Staphylococcus pyogenes population was not killed by penicillin treatment. Curiously, these cells were not resistant to the antibiotic at hand, as they gave rise to a new population that again showed susceptibility towards penicillin. Bigger appropriately named the persevering cells persisters. Persister cells are now known to withstand antibiotic therapy and to resuscitate when the therapy is stopped, thereby contributing to the chronic nature of many infections. The development of novel techniques to study small fractions of cells that only transiently display multidrug tolerance, along with the recognition of their clinical importance, has substantially fueled persistence research. At present, it is clear that cells can switch to the persistent state as a result of stochastic expression of persister genes. In addition, persistence can develop as a result of environmental stimuli.
The essential and conserved P-loop GTPase Obg has previously been implicated in the coordination of many cellular functions including ribosome biogenesis, DNA replication, and several stress responses. In addition, it has been dubbed a cell cycle sentinel, tuning its activities according to the cell's energy status in order to enhance bacterial survival in hostile environments. These previously reported properties made Obg an attractive candidate to regulate entry into the persistent state. We assessed this by both overexpressing and depleting Obg in the model bacterium Escherichia coli. Our results show a direct and strong correlation between cellular Obg concentrations and persister levels of E. coli populations. Using fluorescence-activated cell sorting (FACS), we additionally demonstrated at the single-cell level that high Obg levels, originating from stochastic fluctuations in obg gene expression, significantly increase the likelihood of surviving lethal antibiotic treatment. Combined, our results indicate that naturally occurring cell-to-cell variations in expression of obg contribute to persistence.
As well as noisy gene expression, environmental triggers have previously been shown to promote persistence development. Earlier research revealed an important role for the stringent response to nutrient limitation in the emergence of persistence. In E. coli, nutrient limitation is signaled by the alarmone (p)ppGpp that is produced by RelA and SpoT and broken down by SpoT. Interestingly, Obg is known to associate with both (p)ppGpp and SpoT. Using both mutants defective in the stringent response and mutants producing intermediate levels of (p)ppGpp, we showed that Obg-mediated persistence is dependent on (p)ppGpp but not on SpoT. In addition to stochastic fluctuations in Obg levels, the newly-unraveled persistence mechanism therefore also depends on environmental stimuli and thus represents an example of responsive diversification. At present, it is not known whether (p)ppGpp binding to Obg is required to induce persistence. This association might cause conformational changes that redirect Obg's activities. In an alternative scenario, (p)ppGpp might affect a hitherto unidentified factor that, along with Obg, drives persistence.
To identify potential effectors of Obg-mediated persistence, we performed a transcriptome analysis, comparing Obg overexpression and depletion strains. Strikingly, among the differentially expressed genes was hokB. hokB is part of a chromosomal toxin-antitoxin module and encodes a small peptide that localizes to the bacterial membrane. Hok toxins were first identified on plasmids where they constitute a maintenance mechanism. Hok translation is tightly regulated by its cognate antitoxin sok and an additional regulator mok. However, little is known about transcriptional control of chromosomal hok-sok modules. Our results indicate that Obg is a regulator of hokB gene expression, as we observe a direct correlation between cellular Obg concentrations and hokB mRNA levels, both at population level and at single-cell level. Possibly, Obg could interfere with post-transcriptional stabilization of hokB mRNA. Alternatively, Obg could directly or indirectly activate hokB transcription. However, Obg is not known as a transcription factor and the protein has never been reported to affect gene expression in a direct manner. Therefore, indirect regulation of hokB transcription via an as yet to be identified effector is a more plausible scenario. Proteins whose expression is regulated by (p)ppGpp are among the likely effectors, as Obg does not induce hokB expression in a strain lacking (p)ppGpp.
In addition to providing a first clue as to the regulation of hokB transcription, our data show that Obg-mediated persistence is dependent on HokB. Overexpression of obg no longer increases persistence in a hokB knockout strain. In addition, ectopic overexpression of hokB increases persistence significantly. These findings are indicative of a model in which Obg, through transcriptional activation of hokB, affects persistence. Previously, it was suggested that Hok toxins cause the transmembrane potential to collapse. We confirmed this using a fluorescent dye that only enters depolarized cells. Overexpression of Obg also results in membrane depolarization. On the other hand, artificially increasing the membrane potential using the photoprotein proteorhodopsin or the metabolite mannitol completely abolishes Obg- or HokB-mediated persistence. Combined, these results strongly suggest that the newly-discovered persistence mechanism proceeds through membrane depolarization, leading to a decrease in cellular energy levels and the induction of the persistent state. Of note, depletion of Obg in a strain deleted for hokB reduces persistence, suggesting the existence of at least one additional pathway through which Obg affects persistence. In addition, it remains to be investigated how HokB affects the membrane potential. Reminiscent of previously described toxins TisB and GhoT, HokB might form pores that cause membrane permeability. Alternatively, as has been suggested previously, HokB might interact with specific membrane-bound entities. Candidates of interest in this respect are components of the respiratory chain, inhibition of which could interfere with electron transport and proton pumping, eventually leading to a collapse of the membrane potential.
FIGURE 1: A model for Obg-mediated persistence.
Stochastic fluctuations in Obg concentrations drive expression of HokB in a (p)ppGpp-dependent manner. HokB protects the cells from antibiotic attack by reducing the membrane potential. Persister cells surviving antibiotic treatment give rise to a new population. See text for details.
In summary, we have revealed a signaling cascade through which Obg activates hokB expression in a (p)ppGpp-dependent manner, ultimately leading to membrane depolarization and persistence (Figure 1). Of note, we have shown that Obg-mediated persistence is also found in the human pathogen P. aeruginosa, suggesting that it represents a conserved mechanism of antibiotic tolerance. The decreased persister fraction in an Obg depletion strain that we report here makes Obg a promising target for therapies directed against bacterial persistence. Further elucidation of this pathway will lead to a better understanding of the persistence phenomenon, which may lead to the development of new drugs to combat chronic infections.
NV received a fellowship from the Fund for Scientific Research - Flanders (FWO). WJK is recipient of a fellowship from the Institute for the Promotion of Innovation through Science and Technology in Flanders (IWT-Vlaanderen). The work was supported by grants from the KU Leuven Research Council (PF/10/010 (NATAR), IDO/09/010, CREA/08/023), the FWO (G.0413.10, G.0471.12N, G0B2515N), and the Interuniversity Attraction Poles Programme initiated by the Belgian Science Policy Office.
Membrane depolarization-triggered responsive diversification leads to antibiotic tolerance by Natalie Verstraeten et al. is licensed under a Creative Commons Attribution 4.0 International License.
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– japoński piłkarz występujący na pozycji pomocnika.

Kariera klubowa
Jako piłkarz grał w klubie Gamba Osaka.

Bibliografia

Japońscy piłkarze
Urodzeni w 1968
Piłkarze Gamby Osaka

redpajama_set_name: RedPajamaWikipedia


We need to look at self-worth because we do not want to respond defensively to others and hurt them as we may have been hurt … and because God does not want us to walk around feeling we are worthless and of no value. After all, he stretched out his arms and died for us, so he has already demonstrated how valuable we are to him.
If we base our self-worth on anything other than what God says about us, we will never feel good enough to please him because we are not. But Jesus is! And in him, so are we. Instead of focusing on ourselves and our failures and hurts, we need to focus on God's love for us … his promises to us … and who we are in Christ Jesus.
Jesus loved you enough even before you knew him to die on the cross for your sins. You are precious to him.
If you have asked Jesus to forgive your sins and have made him Lord of your life, you are clothed in his righteousness. God looks at you and sees you cleansed and forgiven. You are special and he has a good plan for your life.
If you have not yet received Jesus, you can come to him right now. No matter what you have done. No matter what you think about yourself—or what anyone else thinks about you. God's love is more than enough. The power of the cross is more than enough. Say "yes" to Jesus and let him envelope you in his love and forgiveness.


"IBM Business Consulting Services has released its annual Retail CIO Survey for 2003, with findings that suggest a growing opportunity for Linux in point of sale (POS) and other retail systems. According to the report, Linux as an in-store operating environment grew from 0% in 2002 to 5% in 2003, while more than a quarter of respondents expected to implement Linux-based in-store operating environments within 3 to 5 years.
"The IBM report coincides with an interesting story by LinuxJournal publisher Phil Hughes, who identifies an opportunity for embedded Linux in the retail market, where it has made few inroads to date..."


A SALISBURY-BASED disaster response charity has been targeted for a second time by "thoughtless" vandals.
One of Serve On's vehicles was pushed down a hill into a fence causing a large dent at the charity's training area in Chilmark over the weekend of March 22 and 23.
The van was badly damaged last summer and had been taken off the road but the charity had been using it for road traffic collision training.
Serve On's operations manager Craig Elsdon said: "We are having to divert resources to this. We want to be able to train to save lives not volunteer time to deal with this.
Previously, paint was thrown over the vehicle and the windscreen and windows were smashed. Vandals also ransacked the inside, taking a radio and a battery and smashing the fuse box.
A training rig was also damaged and a window of its training classroom was smashed.
In a letter to the vandals, Craig said: "We'd really like to help you make some good decisions, the sort of decisions that could help you go further in life and feel good about yourselves.
"Before that, we need to let you know the impact you are causing and to who.
"The area and equipment you damage has been paid for by generous donations from the public who support our work. We are a charity.
"Our members raise the money to pay for this training and equipment by using their own time and effort, so it is hugely frustrating when some of that money has to be spent replacing things that have been broken by thoughtless acts of petty vandalism.
"Your actions may seem fun to you but they have consequences.
He added: "All is not lost. You could just leave us alone, stop these acts and not risk getting caught.
"However, you could also join us and improve your own self worth, skills and experience. Our volunteers save lives, get qualifications, and do good in their community. You can be part of that.
Anyone with information should call police on 101, quoting 54190028743.


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U.S. News & World Report Ranks UCSB Graduate Programs Among the Best
Chemical engineering and materials place among the top 10 in the nation
Grad Division sign.jpg
In its annual ranking of leading graduate and professional programs at American universities, U.S. News & World Report magazine has rated two of UC Santa Barbara's programs among the top 10 in the nation.
UCSB's materials program was ranked No. 2 in the 2015 U.S. News list of American universities, and No. 1 among public institutions. UCSB shares the number two ranking with Northwestern University and the University of Illinois at Urbana-Champaign, while the top spot is held by Massachusetts Institute of Technology. Both MIT and Northwestern are private research universities.
The chemical engineering program at UCSB ranks No. 8 overall, and No. 4 among public universities.
In addition, UCSB's College of Engineering was ranked No. 19, moving up one spot from the 2014 rankings. Tied with the University of Pennsylvania, it is No. 11 among public universities.
U.S. News does not compile rankings in all fields every year, and this year did not update the rankings for graduate programs in the humanities, social sciences, and biological sciences, including chemistry, earth sciences, computer science, and physics.
"The latest rankings confirm UC Santa Barbara's leadership role in graduate education across a wide spread of disciplines," said Carol Genetti, dean of UCSB's graduate division. "Our graduate programs are a great source of pride for the campus and our students are known for their extraordinary impact on their disciplines and on our broader society. I am truly gratified to see this recognized at the national level."
"This upward trend in our rankings shows that UCSB's impact in engineering and the sciences is recognizable on a global level," Rod Alferness, dean of the College of Engineering, said of the college's tick upward. "We continue to be dedicated to the success of our engineering students and faculty. Our graduate programs are becoming known as the best in the world, and students seek out the unparalleled opportunities they find at UCSB."
The U.S. News rankings are based on a weighted average of various measures, some specific to the particular programs. The rankings generally include an assessment by peers, with measures of faculty quality and resources, student selectivity, research activity and several other factors.
Highlights of the graduate school rankings are included in the current issue of U.S. News & World Report and in the 2015 edition of "America's Best Graduate Schools" as well as on the magazine's website, http://www.usnews.com.
Andrea Estrada
andrea.estrada@ucsb.edu
Carol Genetti
Rod Alferness
The Top Five
Sustainability Strides
'A Prolific Spirit of Innovation'
Capstone 2018
The Dynamics of Opinion
Dreaming Big
In the Top Ten — Again
Excellence Recognized
Top Ten Again
So You Wanna Go to Grad School
Navigating the Vast Unknown


D is for... shut up, I have the flu.
The blog where I write about writing. Right?
Disaster. Got the flu, like everybody else in my family. Stayed in the blue reclining chair for hours.
Not to worry, I'll catch up on our little story as soon as I get the ol' brain working again. Scroll down to read A,B, and C. Thanks, and sorry!
awww! feel better, man. take it easy, too!
I hope you're feeling better soon. Nice to meet you on the challenge.
Feel better soon. The creeping crud invaded our house earlier this year.
Aww, I read this on Kayeleen's blog. Hope you're all feeling a bit better now!
Copyright 2012 by Greg Hamblin. All rights reserved. Powered by Blogger.
V is for Very Sorry!
A to Z challenge: J is for JuJu!
A to Z challenge: I!
a to z challenge: H!
A to Z: D, E, F, 'n' G!
A to Z challenge: C!
A to Z Challenge, B!
A to Z Challenge: A!


Those are the words to live spoken by the always serene Paper Paulk, who has linked with HipHopDX to premiere his "Think About It" video from his recently released Stay Committed.
Paulk has been making waves within the Cleveland rap circuit, as he's coming off a cover appearance on The Cleveland Scene magazine cover.
Watch the HipHopDX-premiered video up above and check Stay Committed right here.


As a teenager, summer reading for me used to involve a paperback, a beach towel and some baby oil to encourage fast tanning.
Okay, it doesn't have to be a paperback, and PLEASE don't use baby oil, but summer does evoke a picture in your mind, right?
Doesn't this just make you want to brew a cuppa, go outside crack open a good book?
Reading all day makes the day go by very slowly. And, even if you are an avid reader, when was the last time you read a book outside? We get busy and forget that joy of reading a good book by the lake, in the backyard under a tree, in a rocking chair on the front porch or….you get the hint.
There are no rules for what you should be reading during the summer. This morning, I heard someone say, "I'm reading The Picture of Dorian Gray. Not exactly good summer reading, is it?" Why not?
And it doesn't have to be a book, does it?
You might go to the library or the bookstore and pick up a magazine you've never read before, just because it piques your interest. Or find an old favorite that you haven't read for awhile. Or a magazine you might normally consider a guilty pleasure or "trashy." A secret pal at work once gave me an issue of the National Enquirer, which I found to be an outrageously fun and silly way to spend that hour.
And don't forget Short Stories, Essays or Novellas – often overlooked, if you ask me.
The only "self care rule" I think you should consider about this prompt today is to make sure it's something you want to read for you and for fun, rather than a must read for work, school or someone else's request.