PHILADELPHIA – According to a federal judge, a pair of female Philadelphia police officers who claim they were the longtime targets of harassment and discrimination will not be permitted to depose Philadelphia Mayor Jim Kenney.
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.
(A seconded amended complaint was filed on May 21 of this year.)
The litigation led to the resignation of former Philadelphia Police Commissioner Richard Ross in August 2019. 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 2019, 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 a— 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.
Following the filing of the lawsuit, Ross resigned on Aug. 20, 2019.
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.
UPDATE
The plaintiffs sought to depose Kenney, a non-party to the suit, for his supposedly having “unique personal knowledge of the Philadelphia Police Department’s policy or custom of discriminating against black female cops.”
“Plaintiffs allege that Mayor Kenney’s announcement regarding the City Controller Office’s 2018 audit of the City’s sexual misconduct policies, procedures and payouts, and the mayor’s announcement of the resignation of defendant Richard Ross, Jr. as Police Commissioner following the filing of this lawsuit, are sufficient evidence that Mayor Kenney has ‘unique personal knowledge’ justifying his deposition,” according to U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston.
The defendants opposed this move and filed a protective order to preclude the deposition on June 12.
“Defendants argue that the Court should preclude the deposition of Mayor Kenney because (1) He was not involved in any decisions allegedly impacting Plaintiffs; (2) He has no personal knowledge of any material fact relevant to adjudicating plaintiffs’ sexual harassment and discrimination claims; and (3) He is a high-ranking government official entitled to limited immunity from being deposed concerning matters about which he has no unique personal knowledge,” Marston stated.
Marston explained that the plaintiffs would have to illustrate Kenney’s personal knowledge of the matter in order to overcome the limited immunity principle; that it would “likely to lead to the discovery of admissible evidence, is essential to that party’s case and that this evidence is not available through any alternative source or less burdensome means.”
Marston said the plaintiffs’ reliance on remarks made surrounding Ross’s resignation did not meet this burden and suggested deposing other City and police officials to gain the information they needed.
“Plaintiffs fail to show how the mayor’s deposition is essential to their case. Simply asserting that the deposition is essential, as plaintiffs do, is insufficient to meet their burden. Moreover, plaintiffs fail to address how the mayor’s deposition is essential despite the plethora of depositions plaintiffs are taking in this case and the extensive amounts of documents plaintiffs have already received,” Marston stated.
Marston granted the protective order but did so without prejudice, in case other information proving the essentialness of Kenney’s deposition was introduced.
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 Brian Matthew Rhodes, 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