PHILADELPHIA - A Puerto Rican narcotics agent found to be fired over incompetence is appealing the loss of her discrimination lawsuit against the State of Pennsylvania.
Beverly Rivera filed her notice of appeal to the U.S. Court of Appeals for the Third Circuit on Dec. 13. She hopes to overturn Philadelphia federal judge John Murphy's Nov. 13 decision granting summary judgment to the defendant.
Murphy's ruling said she was fired for failing to master basic skills like using her firearm, not because she is female and of Puerto Rican descent.
Rivera sued the state of Pennsylvania after being dismissed from her job as an agent in the Bureau of Narcotics Investigations in the state Office of Attorney General. She claimed her colleague identified as “Agent Martinez” created a hostile work environment, berating her with colleagues, using obscene language and suggesting she was dating a female colleague.
The state responded by supplying a written record of reprimands for a variety of workplace failures including submitting reports under the names of other agents and endangering the lives of her colleagues by failing to respond to messages and breaking cover.
In one case, she “spoke with a homeless man whom her grandmother used to feed” while operating undercover. She also was reported for “strugg[ling] with even the fundamentals of firearms,” failing to follow instructions, and “not hitting anywhere on the target.”
Rivera failed to refute these claims and didn’t present enough evidence to go to trial on her discrimination claims, Judge Murphy ruled. After repeatedly answering “I don’t recall” to questions under oath, her lawyer filed an affidavit answering many of those same questions but it was too late and not enough to overcome the state’s evidence, the judge ruled.
Rivera was hired as a narcotics agent in 2019 and placed on administrative leave in March 2021.
After six months on leave she filed discrimination claims with the OAG, saying Agent Martinez acted as if her “mere presence was bothersome,” told colleagues she was dating a female agent in the office and told her in an “off-the-record meeting”: “You f---ed up. And you have to admit when you f--- up. I am an old man and I admit when I f--- up.” Martinez was a colleague but didn’t have the power to fire or demote her, the court said.
The OAG challenged most of Rivera’s discrimination claims, saying the coworker denied she was ever asked if she were dating Rivera or that Martinez used profanity. The court said it must accept Rivera’s claims as true on motion for summary judgment, but that her deposition testimony “largely conflicts” with what her written complaint.
When questioned under oath, Rivera repeatedly answered “I don’t recall” when asked if she was notified about poor job performance, any of her job duties, the type of work she did or even the number of agents in her office. She did recall speaking to the homeless man her grandmother fed, but not being reprimanded for it.
“This pattern of not recalling nearly any information about her job performance, the subsequent investigation, and her termination continued throughout the deposition,” the court said. Two months later, Rivera filed a written declaration in which she said she had been “stressed and overwhelmed” during the deposition and now remembered much of what she couldn’t recall when being questioned under oath. But the court said it would be justified in rejecting the affidavit as too late and likely drafted by her lawyer.
The court said Rivera’s allegations “do not reach the high bar required for a hostile work environment claim. The allegations were not physically threatening, did not unreasonably interfere with her work performance, and were not sufficiently frequent.”
The court cited a Third Circuit decision upholding dismissal of a hostile work environment claim where a woman said a supervisor made repeated sexual comments to others that led her to lock herself in a bathroom for her own safety. The supervisor never propositioned the plaintiff for a date or sex, never touched her and never made sexual comments directly to her, the appeals court ruled in that case.
Editor's note: Daniel Fisher contributed to this article.