PHILADELPHIA – The City of Philadelphia has been partially granted a protective order over a number of investigative records being sought in a case brought by a pair of female Philadelphia police officers, who claim they were the longtime targets of harassment and discrimination.
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 former Commissioner Richard 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, 2020.)
The litigation led to the resignation of 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 Court granted a protective order precluding the mayor’s testimony.
UPDATE
As discovery in the case proceeded, defense counsel for the City sought a number of investigative records. These included: (1) Philadelphia Police Department investigation files, which are responsive to plaintiffs’ subpoena directed to Montgomery McCracken; (2) Montgomery McCracken’s privilege log; and (3) The memorandum section for each Internal Affairs and/or Equal Employment Opportunity (EEO) file that involves complaints of gender discrimination, sexual assault, or sexual harassment within the Philadelphia Police Department from October 2015 to present, which are responsive to plaintiffs’ second request for production of documents directed to the City.
The plaintiffs opposed the motion for cause and characterized the request as “overbroad.”
In a March 31 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston stated that the request would be granted in part and denied in part.
Marston found that “public disclosure of the investigatory files would threaten the privacy interests of nonparties [to the litigation].”
“[The City] explains that given the sensitive nature of the allegations, employees “file their complaints with the expectation of privacy, discretion, and even confidentiality due to the risk that exposing their identities as well as the accused employee’s identity and the alleged conduct to the public may subject either party to embarrassment, retaliation and unwanted attention,” Marston said.
“Given this risk, the City defendants also argue that unlimited disclosure of the files will have a ‘chilling effect,’ deterring future complainants and witnesses from reporting sexual harassment or from being forthcoming with investigators.”
Marston concurred with the City’s argument.
“The Court agrees with the City Defendants that public disclosure of the investigatory files – which likely contain sensitive information about the complainants, witnesses, and accused related to alleged incidents of sexual harassment and gender discrimination – would violate the privacy interests of non-parties and open them up to potential censure and embarrassment,” Marston said.
However, though finding that a protective order is warranted, Marston did not enter the order proposed by the City defendants, for three reasons.
“The City defendants have neither submitted the allegedly confidential documents for in camera review, nor have they argued that the presumptions of access under the common law and First Amendment are overcome in this case. Without further review and discussion, the Court will not enter an order that automatically seals all filings containing confidential information,” Marston stated.
“Second, the proposed order severely limits plaintiffs’ rights to review confidential information and discuss the information with their counsel. Therefore, we will not preclude any party from reviewing discovery which may be relevant to his or her case, nor will we encroach on any attorney’s ability to furnish legal advice in relation to that discovery.”
Lastly, requested order would also govern documents “used and/or exchanged between the parties during settlement negotiations”, and as that category of documents was not discussed in the City defendants’ motion, Marston made no ruling on it.
“We grant the City defendants’ motion for protective order in part and contemporaneous with this memorandum, enter an order protecting confidential information exchanged during discovery. However, the motion for protective order is denied without prejudice to the extent the City defendants’ proposed order asks us to automatically seal any filing containing confidential information, to limit any party’s ability to review and receive advice about confidential documents, or to protect documents exchanged during settlement negotiations. If necessary, the City defendants may raise these issues again in the future,” 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