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Workers cannot use the “continuing violation” theory to bring a retaliation claim against former bosses on the grounds that they allegedly instructed their successors to continue punishing the worker long after the original bosses left their posts, a federal judge has ruled. “Legal precedent does not recognize this ‘dead hand’ form of the continuing violation theory, whereby one individual … is said to control the actions of other individuals, some of whom he may not even have met, long after he leaves the plaintiff’s place of employment,” U.S. Magistrate Judge Jacob P. Hart wrote in DiBartolo v. City of Philadelphia. Hart found that the 3rd U.S. Circuit Court of Appeals has instructed trial judges that “the focus in a continuing violation case is on the date of continuing affirmative acts by the defendant, not on continuing ill effects from a defendant’s original act of discrimination.” And even if Philip DiBartolo’s original boss did “poison the minds” of his successors — making them pre-disposed to dislike DiBartolo — Hart found that any negative actions taken by the later bosses would legally be nothing more than the “ill effects” of the original boss’s illegal conduct. As a result, Hart found that all of DiBartolo’s claims against two previous bosses — Dr. Bruce Davidson and attorney Jesse Milan — were barred by the statute of limitations. “I find that Davidson and Milan are responsible only for their own affirmative acts, none of which took place within the limitations period,” Hart wrote. DiBartolo’s lawyers — Mark B. Frost and Josephine Carabello Patti of Frost & Zeff in Philadelphia — also argued that their continuing violation theory could be premised on a “systemic” violation, as opposed to a “serial” violation. Hart found that the distinction between a systemic and serial violation “has never been applied by the 3rd Circuit,” but has been described by district courts. “While a serial violation requires that an identifiable discrete act have taken place within the limitations period, a systemic violation does not, because it is based on a theory that the defendants are pursuing a discriminatory policy or practice,” Hart wrote. But DiBartolo failed to meet the test for a systemic violation, Hart found, because he “offered no proof of a company-wide practice pursued by the Department of Public Health.” Even if Davidson had pursued a policy of retaliating against those who opposed him, Hart found that the evidence showed that Davidson’s superiors reprimanded him for his management style, and specifically warned him against retaliation. Having dismissed DiBartolo’s claims against the two prior bosses as time-barred, Hart turned to the more recent claims and found that DiBartolo could not prove that any actions taken against him were connected to his “protected activity.” Hart also found that nearly all of the actions that DiBartolo complained about were not legally considered “adverse employment actions,” such as letters of reprimand and the denial of a promotion that he was not qualified to apply for. According to the suit, DiBartolo has worked for the city since November 1988 — first in the AIDS Activities Coordination Office (AACO) as an investigator and then as a supervisor in its surveillance program. In 1992, he was transferred to the Health Department’s tuberculosis unit. Named as defendants in the suit were the City of Philadelphia; Health Commissioner Estelle Richman; and several other city workers, some of whom served as DiBartolo’s supervisors over the years — Davidson, who was director of the city’s Tuberculosis Control Program until April 1997; Milan, who became director of AACO in June 1995; Joseph McNally, the personnel officer for the Health Department; and Patricia Bass and Joseph Cronauer, who jointly replaced Milan after he resigned in February 1997. DiBartolo complained that he was targeted for retaliation by Davidson after he filed a union grievance about Davidson’s alleged hiring of non-union workers to do union work. He also said he was punished because he had two meetings, in May and October 1996, with the lawyers for eight African American employees of AACO who had filed charges of racial discrimination against the city. Hart found that McNally, Bass and Cronauer were entitled to summary judgment on DiBartolo’s civil rights claim because “DiBartolo offers no evidence whatsoever that any of these defendants knew of his protected speech.” As a result, Hart said, DiBartolo “has failed to show the required causal link between his protected activity and the alleged discriminatory actions taken by these defendants.” Hart also rejected DiBartolo’s claim that Richman is liable for acquiescing in retaliatory acts taken against him. “I have already ruled that no acts after that point can be considered retaliation in the absence of evidence that any post-April 1997 actor knew of DiBartolo’s protected speech. Since there was no post-April 1997 conduct which violated DiBartolo’s constitutional rights, and since conduct before 1997 falls outside of the statute of limitations, there is simply no actionable conduct in which Richman and the City could have acquiesced,” Hart wrote. The city was represented by Deputy City Solicitors Stephen C. Miller and Frank Conley. Davidson was represented by attorneys Gregory P. Miller, David M. Laigaie, Stephen G. Stroup and Heather C. Giordanella of Miller Alfano & Raspanti in Philadelphia.

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