PHILADELPHIA – Philadelphia police officers accused of either participating in or condoning a longtime pattern of harassment and discrimination by two female colleagues are requesting that several claims levied against them are dismissed from the litigation.
On June 4, defendants the City of Philadelphia, Christine Coulter, Daniel MacDonald, Michael McCarrick, Timothy McHugh, Brent Conway, Eric Williford, Kevin O'Brien, Tamika Allen, and Herbert Gibbons filed a motion to dismiss numerous claims from a lawsuit brought by Cpl. Audra McCowan and Officer Jennifer Allen.
“First, plaintiffs bring numerous claims against individual defendants without alleging any facts in support: These claims should be dismissed. Second, plaintiffs’ intentional infliction of emotional distress claims fail as a matter of law, whether alleged against the City itself or the individual defendants. Third, plaintiffs fail to allege a prima facie case under the Pennsylvania Whistleblower Law,” the dismissal motion read, in part.
“Fourth, plaintiff Allen’s claims of wage and hour violations of the Fair Labor Standards Act are not cognizable under the statute and the statute does not entitle to her to recover on the facts alleged. Fifth, plaintiffs’ Section 1981 claims against the City should be dismissed because such claims must be brought under Section 1983, and plaintiffs’ 1983 claims fail because plaintiffs fail to identify a policy or custom that caused a constitutional injury, and also fail to allege personal involvement in any such violation by any of the individually-named City defendants.”
Furthermore, former Police Commissioner Richard Ross filed a motion to dismiss himself from the case the very same day, alleging both plaintiffs failed to set forth any race-based discrimination claims, and that all state law claims asserted against Ross must be dismissed because he is afforded qualified immunity under the Political Subdivision Tort Claims Act.
An amended lawsuit filed Aug. 19 by Cpl. Audra McCowan and Officer Jennifer Allen in the U.S. District Court for the Eastern District of Pennsylvania accuses Ross of failing to act on numerous charges of harassment and discrimination the plaintiffs were facing from fellow officers.
The litigation led to the resignation of former Philadelphia Police Commissioner Richard Ross last summer. He was then succeeded by acting commissioner Christine Coulter until a permanent replacement was found in current commissioner Danielle Outlaw.
In the litigation, first filed in July, McCowan, an African-American, and Allen, of African-American/Hispanic heritage, both claim to have been the targets of sexual harassment and discrimination for years. In that time, they say they were the subjects of crude remarks, harassing telephone calls at home, unwanted attention from male officers and groping, including on one occasion in a prayer gathering.
Allen, who recently became a mother, added that she was harassed for pumping breast milk during work hours and was also the recipient of lewd humor when she reported an incident of her milk bottle being tampered with in an office refrigerator.
McCowan said she approached Ross in February 2019 about an incident of sexual harassment from a male colleague against her, and that Ross rebuffed her claims.
In response to McCowan’s account, Ross is said to have replied, “So why don’t you just order his dumb ass to go sit down and get out of your face, Officer.”
In the suit, McCowan alleged Ross stated he did not act on the harassment complaint as a form of retribution against her for the plaintiff's breaking off an alleged, two-year-long affair between the two, spanning 2009 to 2011.
Ross resigned on Aug. 20, ending a 30-year career in the Philadelphia Police Department that saw him serve in a number of capacities before his tenure as Police Commissioner began in January 2016, including in patrol, special operations, detective bureau, homicide, and internal affairs.
In addition to the City of Philadelphia and now-former Police Commissioner Ross, ex-Commissioner Coulter, Chief Inspector Daniel MacDonald, Lt. Timothy McHugh, Inspector Michael McCarrick, Sgt. Brent Conway, Sgt. Eric Williford, Sgt. Kevin O’Brien, Sgt. Tamika Allen, Sgt. Herbert Gibbons and Younger are all named as defendants in the lawsuit.
The complaint covers 18 counts against the defendants, including: Disparate treatment, hostile work environment and retaliation under Title VII, violation of protections for nursing mothers and retaliation under the Fair Labor Standards Act, interference and retaliation under the Family Medical Leave Act, disparate treatment, hostile work environment and retaliation under 42 U.S.C. Section 1981, disparate treatment, hostile work environment and retaliation under 42 U.S.C. Section 1983, retaliation under the Pennsylvania Whistleblower Law, intentional infliction of emotional distress, assault and battery, declaratory relief allegations and injunctive relief allegations.
The plaintiffs are seeking damages of an unknown dollar figure, including: Litigation costs, compensatory damages, reasonable attorney’s fees, pre- and post-judgment interest, a declaration that the City’s conduct as set forth herein is in violation of Title VII, the Fair Labor Standards Act, the Family Medical Leave Act, equitable and general relief, punitive damages, liquidated damages, reinstatement of fringe benefits and seniority, promotion and in injunction preventing further commission of the defendants’ alleged acts, in addition to a trial by jury.
The plaintiffs are represented by Ian M. Bryson of Derek Smith Law Group, in Philadelphia.
The defendants are represented by Daniel R. Unterberger and Erica Kane of the City of Philadelphia Law Department, Jeffrey M. Kolansky, Jeffrey M. Scott and Lloyd Freeman of Archer & Greiner, plus Amy C. Lachowicz, Daniel J. McGravey and Lauri A. Kavulich of Clark Hill, also all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-03326
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com