PHILADELPHIA – Philadelphia City Controller Rebecca Rhynhart will offer a deposition in a lawsuit brought by a pair of female Philadelphia police officers who claim they were the longtime targets of sexual harassment and discrimination.
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
While the plaintiffs were unsuccessful in previously seeking to depose Mayor Jim Kenney, a non-party to the suit, the same could not be said for their efforts for Rhynhart – herself also not a named party in the litigation.
With Rhynhart’s deposition having been scheduled for July 21, her counsel informed the court just one day prior, on July 20, that Rhynhart intended to file a motion for a protective order to preclude her deposition – and that Rhynhart had notified plaintiffs that she would not be appearing for her scheduled deposition.
The following day, Rhynhart filed her motion for a protective order invoking her limited immunity as a high-ranking government official, which the plaintiffs opposed.
“To overcome this ‘limited immunity’ afforded to ‘high ranking government officials,’ the party requesting the deposition ‘must show that the proposed deposition is: (1) Likely to lead to the discovery of admissible evidence; (2) is essential to that party’s case; and (3) that this evidence is not available through any alternative source or less burdensome means.,” U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston stated.
Marston explained that Rhynhart oversaw a 2018 audit of Philadelphia’s sexual misconduct policies, procedures and payouts from July 2012 through April 2018, finding that Rhynhart possessed “personal knowledge relevant to this litigation” and that her deposition would prove “essential” to the plaintiffs’ case.
“If plaintiffs were precluded from deposing Rhynhart, plaintiffs would likely have to depose numerous – perhaps dozens of – individuals to get the same amount of information that is within Rhynhart’s personal knowledge. Such an undue burden on plaintiffs renders Rhynhart’s deposition essential to plaintiffs’ case,” Marston said.
“Plaintiffs have met their burden to show that City Controller Rhynhart’s limited immunity from being deposed is overcome. Further, Rhynhart fails to show that the deliberative process privilege precludes her deposition. Rhynhart’s request for a protective order is denied.”
Marston ordered Rhynhart’s deposition be taken by Aug. 14.
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, Erica Kane and Nicole S. Morris 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.
Rhynhart is represented by Jo Bennett of Schnader Harrison Segal & Lewis, also 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