PHILADELPHIA – After a jury ordered the City of Philadelphia to pay a total of $1 million to a pair of female, former Philadelphia police officers, who claimed they were the longtime targets of harassment and discrimination in a federal court lawsuit – counsel for the officers has further won more than $800,000 in attorney’s fees and costs, and the defense’s request for a new trial has been denied.
The lawsuit, first filed in July 2019 by Cpl. Audra McCowan and Officer Jennifer Allen in the U.S. District Court for the Eastern District of Pennsylvania, accused former Commissioner Richard Ross of failing to act on numerous charges of harassment and discrimination the plaintiffs said they were facing from fellow officers.
The litigation led to Ross’s resignation 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 suit, McCowan, an African-American, and Allen, of African-American and Hispanic heritage, both claimed to have been the targets of sexual harassment and discrimination for years. In that time, they said 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 had 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.”
As a result of the constant harassment, McCowan and Allen resigned from the police force.
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.
The original complaint covered 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.
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 Officer Curtis Younger were all named as defendants in the lawsuit.
Ross, Coulter, McCarrick and Younger were dismissed from the case this past April.
The plaintiffs also sought to depose Mayor Jim 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.”
Although, the Court granted a protective order precluding the mayor’s testimony earlier in the course of litigation.
The jury recently awarded each plaintiff $500,000 in compensatory damages, in a judgment entered by U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston – and should the City choose not to appeal, it would also be responsible for paying the plaintiffs’ attorney fees.
On June 7, plaintiff counsel filed a memorandum of law in support of a motion for those attorney’s fees and costs – finding that they are permitted by statute, are reasonable and are due to the prevailing party in such a lawsuit.
“In addition to the $1 million damages award, the judgment plaintiffs obtained achieved the added benefit of informing the City’s employees and the public at large that the City (a public employer) discriminated against, harassed and retaliated against plaintiffs in violation of federal and state law. This benefits plaintiffs by affirming their rights and the rights of public defendant employees, and by vindicating their efforts to enforce those civil rights. This verdict provides benefit not only to plaintiffs, but also to the City’s current and future employees, and was in the public’s interest,” the memorandum stated.
“The judgment in this case may deter and prevent future discriminatory conduct. The public entry of a verdict stating is liable for intentional employment discrimination places defendant on notice that its conduct was unlawful and will help ensure such deterrence against current and future public employees. Accordingly, plaintiffs are the prevailing parties in this case and are entitled to an award of reasonable attorneys’ fees and costs.”
The memorandum adds that the plaintiffs’ counsel undertook extensive pretrial discovery, 14 depositions, four plaintiffs’ depositions, thousands of pages of document review, legal research, legal writing, motion practice, hearing preparation, oral argument, trial preparation and trial, including the presentation of evidence from 16 witnesses and experts – with Bryson charging $350 per hour and Diamond charging $750 per hour.
The City sought judgment in its favor on the Monell claim, arguing that: (1) The Court incorrectly admitted into evidence the City Controller’s 2018 Audit Report auditing the City’s sexual harassment policies; and (2) There was insufficient evidence to support the jury’s finding that McCowan’s injuries were caused by an official policy or custom.
UPDATE
Before trial, the City objected to the Audit Report as unfairly prejudicial and irrelevant to McCowan’s hostile work environment claim because it analyzed the adequacy of the City’s sexual harassment policies and procedures and did not consider the Police Department’s sexual harassment policy, but the Court overruled that objection.
However, in a July 6 opinion, Marston ruled to deny the defense’s motion to be granted either judgment as a matter of law or a new trial, and granted the award the plaintiffs’ counsel $814,783.50 in attorney’s fees.
Marston found that the Audit Report was “highly relevant” to the plaintiffs’ Monell claim, despite its broad scope.
“A review of the testimony and other evidence admitted at trial shows this ruling [on the Audit Report] was not in error. McCowan’s hostile work environment claim was premised in large part on the Police Department’s internal investigation of her sexual harassment complaint. Viewing the evidence in the light most favorable to the verdict, the jury could have found that the Department’s investigation was biased against McCowan, that investigator Sergeant Brett Conway’s interviews of McCowan were hostile and differed from his interviews with Officer Younger and similarly situated male supervisors, and that the Department sustained violations against McCowan in retaliation for her complaints,” Marston stated.
“The Audit Report – which found that across departments, the City lacks proper policies for investigating complaints of sexual harassment and disciplining employees when those complaints are sustained – ties McCowan’s hostile investigation to this larger City custom.”
Marston found that the Audit Report was properly admitted into evidence over the City’s relevancy objection.
“When it and the remainder of the evidence presented at trial are considered in the light most favorable to the verdict, the jury’s verdict on McCowan’s Monell claim must stand. The City has not shown that it is entitled to judgment as a matter of law or to a new trial. The City’s motion for extension and renewed motion for judgment as a matter of law, or in the alternative, for a new trial or remittitur are denied,” Marston said.
Marston further granted the plaintiff’s motion for attorney’s fees and costs as uncontested, since the City failed to file a response brief within 14 days – and thus, the City is required to pay plaintiff counsel $814,783.50 in attorney’s fees by Aug. 6.
The plaintiffs were represented by Ian M. Bryson and Scott E. Diamond of Derek Smith Law Group, in Philadelphia.
The defendants were represented by Brian Matthew Rhodes, Daniel R. Unterberger, Elizabeth U. Okakpu, Erica Kane and Nicole S. Morris of the City of Philadelphia Law Department.
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