Labor & Employment Law Daily Officer who settled prior sex harassment suit advances First Amendment retaliation claim
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Thursday, January 23, 2020

Officer who settled prior sex harassment suit advances First Amendment retaliation claim

By Joy P. Waltemath, J.D.

From the time she transferred in to the Major Crimes unit, she claimed she was subject to a “grossly sexist culture” that would “protect sexual harassers and cover up sexual abuse by officers.”

Although most of the statutory retaliation claims of a female officer were dismissed on timeliness or exhaustion grounds, her First Amendment  claim that she suffered retaliation by trumped-up disciplinary charges and having a case that she had worked on for two years taken away survived dismissal. The federal court allegations by the officer, who had earlier settled a sexual harassment claim and contended that she suffered significant on-the-job retaliation for it, of what a federal district court in Pennsylvania called the “sexual harassment and misogynistic retaliatory culture within the Philadelphia Police Department” were “relevant to the public’s perception of this law enforcement agency” and were speech on a matter of public concern (Salvato v. City of Philadelphia, January 15, 2020, Younge, J.).

The female police officer had sued and settled a sexual harassment suit against the city, which included her transfer to Major Crimes. On her first day, she was confronted by coworkers who had heard about her lawsuit; her captain told her, “I know who you are and how you got here.” He allegedly ordered her to put the names of other employees on her work so that others would get the credit; after about six months when she asked about an internal promotion, he responded, “As long as I am captain, you aren’t going anywhere. If you don’t like it transfer out.” A few months later, he moved her desk to an isolated area.

About 18 months after the officer began working in Major Crimes, a supervisor in his car allegedly forced her off the roadway while she was walking to her building; although she reported the incident, the captain and her supervisor castigated her for reporting it. Two years after her transfer to Major Crimes, she alleged she was faced with “fabricated disciplinary charges” and taken off a case she had worked on for almost two years. The discipline she faced could lead to termination.

In her complaint, the officer contended that Philadelphia’s police department “maintains a grossly sexist culture[,]” that “[m]ale employees of all ranks on a weekly basis barrage female officers with demeaning sexist comments and conduct[,]” and that the department’s “culture, policies and practices protect sexual harassers and cover up sexual abuse by officers.” This was why she was targeted for discipline and harassment now, she claimed, and in fact, once she filed suit, she was transferred again, which required a substantially longer commute and interfered with therapy for her disabled daughter—also in retaliation for her past and current complaints.

After filing a charge with the EEOC, the officer sued, asserting a Section 1983 Monell claim, retaliation under Title VII and the Pennsylvania Human Rights Act, and a First Amendment retaliation claim. The city moved to dismiss.

Monell claim. The officer’s Monell claim against the city and the police commissioner went nowhere. Monell requires the execution of a governmental policy (whether a policy in fact or a custom that has become de facto official policy) that deprives a citizen of constitutional rights. Her complaint said she had been deprived of her rights under the 4th and 14th Amendments—but as the court pointed out, she never asserted such claims, nor could the court identify any in its review of the facts she alleged. Plus, she hadn’t alleged any claims specific to the police commissioner that could warrant liability. Her Monell claim was dismissed without prejudice.

Retaliation claims. Exhaustion was the main issue with respect to her Title VII ad PHRA retaliation claims. The officer had filed with the EEOC on July 16, 2018; her amended complaint alleged acts that occurred in July (when she began working in Major Crimes) and December 2014, February 2017, November 2017, July 2018, and May 2019. The court agreed with the city defendants that any acts that occurred before September 2017 were time-barred as occurring more than 300 days before she filed her EEOC charge.

The officer also alleged an incident that occurred in late July, after she filed her EEOC charge—when she was taken off the case she had worked on for almost two years. Was this within the scope of her charge? The court couldn’t tell, as she failed to attach a copy of the EEOC charge to her complaint; at this time, the court would not consider it with respect to causation.

Then there were allegations of an incident that occurred after the EEOC provided her right-to-sue letter, and within the Third Circuit, most courts require a new EEOC charge for acts following a right-to-sue letter. Accordingly, the officer’s May 2019 involuntary transfer had not been exhausted, and those clams were dismissed, too.

Causation. Absent the allegations that were untimely and had not been administratively exhausted, it was tough to show that the officer’s protected activity of settling her sexual harassment lawsuit in 2014 was the “but-for” cause of a supervisor’s attempt to run her off the roadway in 2017 and fabricating disciplinary charges against her in 2018. This time lapse was not “unusually suggestive of retaliatory motive,” but it dismissed her claims without prejudice again, noting that if she could show her late July 2018 removal from a work project was based on her mid-July EEOC charge, she would have leave to amend her retaliation claim.

First Amendment retaliation. Despite the city’s success on the Monell and federal and state statutory retaliation claims, the officer was able to advance her First Amendment retaliation claim. The court was not persuaded by the city’s argument that she had not engaged in protected activity on a matter of public concern, with the city characterizing her actions as advancing solely her own interests. To the court, however, her federal court filing was a public communication, and filing a lawsuit over the conditions of her employment could “be a matter of public concern since the litigation serves ‘as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.’”

Specifically, stressed the court, “allegations of sexual harassment and misogynistic retaliatory culture within the Philadelphia Police Department are relevant to the public’s perception of this law enforcement agency.” Accordingly, these allegations survived dismissal.

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