PHILADELPHIA – A federal judge has now twice ruled that 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, 2019 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 second 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.
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.”
However, the defendants opposed this move and filed a protective order to preclude the deposition on June 12. The Court granted the protective order in July without prejudice, in case other information proving the essentialness of Kenney’s deposition was introduced.
UPDATE
The plaintiffs responded with a motion for reconsideration on Aug. 14, contending such reconsideration is appropriate “in light of newly-discovered evidence.”
“Plaintiffs argue that ‘Mayor Kenney has unique personal knowledge relevant to this litigation’ because he is the government official responsible for implementing changes to the City’s anti-harassment policies and because he is overseeing an investigation into the Philadelphia Police Department’s history of sexual misconduct.” U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston said.
“But contrary to plaintiffs’ assertions, the evidence does not show that Mayor Kenney has ‘unique personal knowledge’ of either the City’s policy changes or the investigation.”
Marston added even if Mayor Kenney had personal knowledge of the changes being made to the City’s anti-harassment policies, Controller Rebecca Rhynhart’s deposition shows that this knowledge is not “unique” to the Mayor, and that plaintiffs could likely obtain the same information by deposing someone in the City’s Office of Labor or the Employee Relations Unit.
Furthermore, despite Kenney’s office having authorized an investigation into harassment within the Philadelphia Police Department ranks, Marston said that didn’t necessarily task Kenney with possessing exclusive knowledge of it.
“The evidence shows that the Mayor is not himself investigating allegations of sexual misconduct in the Philadelphia Police Department. Instead, the Mayor’s office is overseeing an investigation conducted by an independent law firm. In short, the Mayor appears to be many levels removed from the actual investigation, suggesting his testimony on this front is far from essential,” Marston said.
Marston said less-burdensome means were available for the plaintiffs to obtain their requested information from other City officials, but they were not pursued.
“In sum, plaintiffs’ newly acquired evidence fails to show that Mayor Kenney possesses unique personal knowledge, that his testimony is essential to plaintiffs’ case, and that this evidence is not available through other, less-burdensome means. Therefore, the Court continues to find there is good cause for a protective order prohibiting Mayor Kenney’s deposition,” Marston stated.
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.
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