PHILADELPHIA – A Philadelphia police lieutenant claims that after he contracted COVID-19, recovered and returned to work, his superiors unofficially revoked his eligibility for overtime assignments in retaliation for his absence from duty to recover from the virus – despite such an absence complying with department policy.
Nicholas Coco filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 3 versus the Philadelphia Police Department.
“In or around September 2007, plaintiff became employed as a Police Officer with defendant PPD. In or around December 2018, plaintiff was promoted to the rank of Lieutenant. In or around December 2021, plaintiff began to work ‘Code 53 Overtime’ within the 24th District. At all times material, Code 53 Overtime assignments were shifts worked by officers throughout the Philadelphia Police Department, wherein officers were assigned to patrol around business that contracted for security services while those officers would otherwise be scheduled as off duty,” the suit states.
“Since its inception, the process for requesting Code 53 Overtime consisted of officers and supervisors signing up using a calendar that was circulated around the district. Once collected, the requests would be compiled into a master sheet. If any shifts remained unfilled, the dates and times of those shifts would be circulated to officers and supervisors in an attempt to fill the vacancies. At all times material, all officers were able to request Code 53 Overtime assignments so long as the contracting business owner agreed to pay rates based upon the officers’ rank. At all times material, defendant was reimbursed for expenses incurred as a result of the overtime, because the contracting shop owners paid for police protection. To request Code 53 Overtime assignments, Officers were required to sign up using printed calendars distributed by the overtime coordinator, Sgt. Michael Hanuscin.”
The suit adds that from June 2022 through August 2023, the plaintiff worked, on average, 91.3 hours of Code 53 Overtime, and during September 2023, the plaintiff worked 50.5 hours of Code 53 Overtime.
On Sept. 24, 2023, Coco contracted COVID-19, which prevented him from working the Puerto Rican Day Parade scheduled for that day.
While the PPD’s policies and procedures mandated that he quarantine until he could produce a negative COVID-19 test (which he did), Coco alleged in his suit that his name being listed as an officer who was absent from duty, on a list given to Chief Michael McCarrick, was “the catalyst for all retaliation against [him].”
According to the suit, the Code 53 Overtime policy was swiftly restructured, removing all supervisors from participating in such work and Lieutenants only being allowed to fill vacancies as a “last resort” – the plaintiff believes that this change in policy and his exclusion from Code 53 Overtime eligibility was a direct result of his contracting COVID-19 and being absent from duty during his illness, in compliance with PPD policy.
When Coco asked Sgt. Hanuscin about his loss of eligibility from Code 53 Overtime, the suit states Sgt. Hanuscin “blamed his superior, Inspector Anthony Luca and explained that per his orders, Code 53 Overtime assignments had to first be offered to officers, corporals, sergeants in the district, the division, then the ROC to include special units, before plaintiff could be offered any shifts.”
The plaintiff continued to request Code 53 Overtime assignments and was repeatedly denied, he says, and maintains that “Code 53 Overtime Assignments being offered to special units was unheard of, and was an attempt to prevent plaintiff from working the assignment by any means necessary.”
“On Oct. 17, 2023, plaintiff was conversing with an officer who had previously worked under him, Officer Daniel Switaj. During their conversation, Officer Switaj informed plaintiff that they spoke with Capt. Christopher Bullick while plaintiff was on sick leave for COVID-19. Officer Switaj explained that Capt. Bullick had expressed his disbelief in plaintiff’s illness and further explained that plaintiff would no longer be permitted to work overtime as a result of his absence. Specifically, Capt. Bullick stated, ‘It’s okay, we’re going to take away his overtime,” the suit says.
“On Oct. 25, 2023, plaintiff contacted Sgt. Hanuscin regarding his requests for Code 53 Overtime assignments in the month of November. Specifically, plaintiff inquired as to when he could expect to learn whether he was approved to work his requested assignments. Sgt. Hanuscin informed plaintiff that he would likely be denied the assignments, but that he would keep plaintiff informed on the situation. On Oct. 27, 2023, plaintiff followed up with Sgt. Hanuscin regarding the same shifts and was informed that he had been denied per the orders of Inspector Luca.”
The plaintiff asserts he was the only officer required to submit a memorandum requesting Code 53 Overtime assignments, per Inspector Luca’s order distributed on Sept. 25, 2023, and that Luca specifically engaged in “targeted efforts to prevent plaintiff from working overtime, by seeking other officers to fill the shifts when plaintiff had already volunteered.”
The suit adds that throughout October and November 2023, the plaintiff’s requests for Code 53 Overtime assignments were met with resistance until, finally, Inspector Luca suspended all such overtime assignments throughout the district – though the measure proved temporary, as Capt. Bullick reinstituted them on Nov. 7, 2023.
“However, plaintiff was still the only officer who was required to submit a memorandum to request overtime assignments. Further, plaintiff remained the only officer who was required to obtain approval from an Inspector to be permitted to perform overtime work. After plaintiff brought this to Capt. Bullick’s attention, Inspector Luca began requiring all personnel to submit memoranda in order to be considered for Code 53 Overtime assignments. Since the reinstitution and actual enforcement of the Code 53 Overtime policy, plaintiff has retaliatorily been prevented from working other overtime assignments that he would otherwise be permitted to work, but for his absence due to illness. Specifically, Capt. Bullick has refused to allow plaintiff to work Code 64 Overtime during the month of January 2024, in retaliation for plaintiff’s complaints regarding unfair distribution of Code 53 Overtime assignments. The above shows a clear concerted effort by Capt. Bullick, Inspector Luca and Chief McCarrick to retaliate against plaintiff for contracting COVID, a medical condition which was verified by a doctor’s note that plaintiff produced upon my return to work per departmental policy,” the suit states.
“Plaintiff continues to be denied permission to work Code 53 Overtime assignments thereby stripping him of income he would otherwise be permitted to receive. The above are just some examples of some of the discrimination and retaliation to which defendants subjected plaintiff to, on a continuous and ongoing basis throughout plaintiff’s employment. The defendants have exhibited a pattern and practice of not only discrimination but also retaliation. Plaintiff claims alternatively that plaintiff is an independent contractor, and plaintiff makes all applicable claims for the above conduct and facts under the applicable law pertaining to independent contractors. Furthermore, in such case, plaintiff claims that defendant owed and breached its duty to plaintiff to prevent the harassment, discrimination, and retaliation and is liable therefore for negligence. Plaintiff claims a continuous practice of discrimination and claims a continuing violation and makes all claims herein under the continuing violations doctrine.”
For counts of violating the Americans with Disabilities Act of 1990 and Pennsylvania Human Relations Act through disability discrimination, retaliation and unlawful interference, the plaintiff is seeking, jointly and severally, damages in an amount to be determined at the time of trial, plus interest, punitive damages, liquidated damages, statutory damaged, attorney’s fees, costs, disbursement of action and for such other relief as the Court deems just and proper.
The plaintiff is represented by Timothy Prol of Derek Smith Law Group, in Philadelphia.
The defendant has not yet obtained legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01893
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com