Judge dismisses some defendants from suit by cop who alleges firing was due to disapproval of interracial marriage

By Jon Campisi | Dec 17, 2013

A federal judge in Philadelphia overseeing a suit by a fired Delaware

A federal judge in Philadelphia overseeing a suit by a fired Delaware

County police officer who claims he was canned because borough officials disapproved of his interracial marriage has granted a partial defense dismissal in the litigation.

U.S. District Judge Cynthia M. Rufe, sitting in the Eastern District of Pennsylvania, dismissed without prejudice the case against Yeadon Borough and the Yeadon Borough Council as a body, although the jurist denied a motion to dismiss the individual council members and other officials as defendants in the civil rights complaint.

Everett K. Terry, the plaintiff, filed suit in November 2012 over claims he was fired from his job as a municipal cop because the defendants disapproved of his relationship.

According to background on the case, the borough’s finance director back in 2005 instructed Terry to include his now-wife on the borough’s health insurance plan.

When Terry explained they were not married, the finance director said they two had been together long enough to qualify for a common-law marriage.

Fast-forward five years, when Yeadon’s mayor, Dolores Jones-Butler, saw photos of the plaintiff’s recent wedding ceremony that had been posted to Facebook.

A month later, the record shows, the mayor, who is a defendant in the litigation, told Terry that employees could not add partners to their insurance plan before they were formally married, and that if he did not resign and repay the amount of overpaid benefits received, the plaintiff would be terminated from his job and prosecuted.

During a subsequent hearing, the borough council allowed Terry to remain at his job as long as he repaid the benefits, according to Rufe’s judicial memorandum.

The record goes on to state that less than two weeks after the hearing, Jones-Butler, the mayor, shouted at the police chief, who had supported the plaintiff, “Don’t think this is over!”

Days later, Terry was informed that the council had met for an unannounced “re-vote,” and decided to terminate him from his police job.

In his lawsuit, Terry claimed that at the time of the firing, he was the only borough employee in an interracial relationship, and that two other borough employees who were overpaid benefits, including a council member, were allowed to repay the overpaid amount and keep their jobs.

In her memorandum, Rufe wrote that while Terry alleged the borough and its council are liable because of an unspoken policy against interracial relationships, “he has not pleaded facts that would allow an inference rising above the level of ‘sheer possibility,’ that discouragement of interracial relationships was so established.”

Rufe, meanwhile, tossed aside a defense argument that the equal protection claim against the individual council members and the other defendants, such as the mayor, should be dismissed because many of them, like the plaintiff, are African American.

An equal protection claim, the judge wrote, cannot be dismissed “merely because the defendant and plaintiff belong to the same race.”

The judge also wrote that Terry has plead facts sufficient to allow his procedural due process claim to move forward.

Rufe also declined to weigh in on the individual defendants’ assertion that they are entitled to qualified immunity at this stage of the litigation, saying any claim for qualified immunity is “premature on the record before the Court.”

“The right to be free from adverse employment actions based on race is clearly established,” at this point in the case, the judge wrote.

The judge, meanwhile, gave Terry leave to file a second amended complaint.

The individual council members named as defendants in the case are Asher Kemp, Jr., Jack Byrne, Florence McDonald, John Holden, Deborah Robinson-Howell, Denise Stinson and Nelva Wright.

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