PHILADELPHIA – According to a federal judge’s ruling, a pair of female Philadelphia police officers who claim they were the longtime targets of harassment and discrimination will be permitted to examine documents relating to investigation of sexual harassment complaints within the Philadelphia Police Department.
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
On July 31, plaintiffs served a subpoena to produce documents on attorney A. Nicole Phillips of Montgomery McCracken. The subpoena ordered Phillips, who is heading the investigation, to produce “all documents relating to your investigation of sexual harassment complaints within the Philadelphia Police Department, including but not limited to, complaints involving plaintiffs McCowan and Allen, plus Tela Kennedy, Vanessa Washington, Sarah DeBarberie, Sharon Conaway and/or Kelly Marks.”
The defendants responded with a motion to quash on Aug. 31, arguing that documents sought by the subpoena are protected by the attorney-client privilege, the deliberative process privilege, and the self-critical analysis privilege.
Meanwhile, the plaintiffs countered that the information they seek is not privileged – but it was an argument that did not find favor in the Court.
“Defendants have not carried their burden of showing that the subpoenaed documents are protected by the attorney-client privilege. There are two fatal flaws with defendants’ argument. First, defendants have provided only a blanket assertion of attorney-client privilege. Defendants have not created a privilege log, provided a description of the documents they seek to withhold, or submitted the documents for in-camera review. This is likely because defendants do not know which documents they are trying to protect,” U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston stated.
“Second, other than the RFP, which defendants only submitted after the Court specifically questioned defendants during oral argument about what evidence they had submitted, defendants have provided no evidence in support of their privilege claim. They did not submit affidavits describing the scope of Phillips’s investigation or descriptions of the documents that they seek to protect, including the names of the individuals involved and the subject matter of the communication.”
Marston added that the deliberative process privilege also did not apply here.
“We find that defendants have failed to properly invoke the deliberative process privilege because they are asserting the privilege through a legal brief prepared by defense counsel, instead of an affidavit prepared by City officials after personally reviewing each of the allegedly privileged documents,” Marston said.
“Although defendants argue that they do not know who the appropriate ‘head of the department’ is here, it is their burden to determine who the appropriate official is in order to properly invoke this privilege. Counsel for the City is clearly not the head of a department and cannot assert the privilege.”
Marston concluded that the defendants did not show their cited privileges applied to the requested documents in this case.
“Defendants have not carried their burden of demonstrating that the attorney-client privilege applies and has not been waived, nor have they properly asserted the deliberative process privilege. The Court declines to recognize the self-critical analysis privilege. Because defendants have not shown that the subpoena seeks privileged information and documents, we will deny defendants’ motion to quash,” Marston said.
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