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Witherbee v. Town of Brattleboro

United States District Court, D. Vermont

June 13, 2019

PENNY WITHERBEE, Plaintiff,
v.
TOWN OF BRATTLEBORO, BRATTLEBORO POLICE DEPT., PATRICK M. MORELAND, MARK E. CARIGNAN, MICHAEL R. FITZGERALD, AND PETER EL WELL, Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS THE AMENDED COMPLAINT (DOCS. 22, 35, 36, 37, 38, 39, 40)

          CHRISTINA REISS, DISTRICT JUDGE

         Plaintiff Penny Witherbee, a former employee of the Brattleboro Police Department ("Brattleboro PD"), brings this action against the Town of Brattleboro (the "Town"), Brattleboro PD, Assistant Town Manager Patrick M. Moreland, Captain Mark E. Carignan, Chief of Police Michael R. Fitzgerald, and Town Manager Peter Elwell (collectively "Defendants"), alleging claims of unlawful sex discrimination in violation of Title VII, 42 U.S.C. § 2000e-2, and of the Vermont Fair Employment Practices Act, 21 V.S A. §§ 495 and 495h ("VFEPA").

         Plaintiff filed her initial Complaint on July 16, 2018, and an Amended Complaint on September 28, 2018. In October and November 2018, Defendants moved to dismiss. (Docs. 22, 35, 36, 37, 38, 39, 40.) Plaintiff opposed the motions on December 13, 2018. Defendants replied on December 27, 2018, at which time the court took the pending motions under advisement. Plaintiff has withdrawn her claims against Brattleboro PD because she concedes that the Town is the real party in interest. Accordingly, all claims against Brattleboro PD are hereby DISMISSED.

         Plaintiff is represented by Susan T. Edwards, Esq. and Stanley J. Silverstone, Esq. The Town, Brattleboro PD, and Defendants Fitzgerald and Elwell are represented by Brian P. Monaghan, Esq. and James F. Conway, Esq. Defendant Moreland is represented by Kaveh S. Shahi, Esq. Defendant Carignan is represented by Constance T. Pell, Esq.

         I. Allegations of the Amended Complaint.

         Plaintiff was hired in 2002 as a Brattleboro PD patrol officer and resigned on August 10, 2018, after having reached the rank of sergeant. She alleges that she "immediately observed that the type of calls she was assigned were influenced by her gender in that she would be denied allocation of violent calls in favor of domestic calls." (Doc. 18 at 3-4, ¶ 22.) She asserts Brattleboro PD's then Chief of Police told her that "if a male you are arresting does not want a female to handcuff him, have a male officer do it[.]" Id. at 4, ¶ 23 (internal quotation marks omitted). Plaintiff was assigned to share a desk with Defendant Fitzgerald, who was at the time a patrol officer. He allegedly stated that he would consent to share with Plaintiff but did not want any "girly stuff on his desk. Id. at 4, ¶ 24 (internal quotation marks omitted). Plaintiff was assigned a dressing area in the locker room next to another female officer and contends that, throughout her tenure at Brattleboro PD, the area of the dressing room where the two women changed was regularly and openly referred to as "the twat cave" by their colleagues and supervisors. Id. at 4, ¶ 25 (internal quotation marks omitted).

         While employed at Brattleboro PD, Plaintiff alleges she was informed she was not welcome at the social hunting event male officers attended but instead should join the social group of the police officers' wives. Plaintiff further asserts that her male colleagues regularly discussed the size and attractiveness of women's breasts in her presence and stated they would like to "stick it in" certain women. Id. at 4, ¶ 28 (internal quotation marks omitted). Throughout her employment at Brattleboro PD, Plaintiff contends that Officer Amy Hamilton was regularly referred to as "Amy Cameltoe," an apparent reference to her genitalia being visible through her clothing. On one occasion, a male colleague wore a baseball hat to work depicting a woman's breasts. Defendant Fitzgerald, at that time the Chief of Police, initially condoned this behavior but reversed his position after realizing a female was present. Defendant Carignan was allegedly aware of the sexist behavior and remarks made by Plaintiffs fellow male officers but did nothing in response. Plaintiff also alleges that in July 2003, then Officer Carignan pushed her up against a wall and attempted to touch and kiss her against her will.

         On December 7, 2013, the day after Plaintiff responded to a hit and run motor vehicle accident, Defendant Moreland approached Plaintiff "purportedly to ask how she was coping after attending the accident scene[, ]" id. at ¶ 36, and during that conversation he pulled her toward him and kissed her against her will. Plaintiff alleges that Officer David Ceretto witnessed this encounter. Plaintiff claims she immediately reported this incident to Lieutenant Carrier, Dispatcher Stires, and Dispatcher Marrero. Later that same day, Plaintiff was in the parking lot at the Brattleboro PD police station and Defendant Moreland was standing by her vehicle. Approximately thirty minutes later, Plaintiff reentered the parking lot where Defendant Moreland remained. He kissed his hand and twice blew her a kiss. Plaintiff alleges Dispatcher Stires witnessed this conduct. Plaintiff reported this incident to Lieutenants Kirkpatrick, Evans, and Perkins.

         Plaintiff alleges that on January 2, 2014, she was speaking with Defendant Carignan when Defendant Moreland approached and greeted Plaintiff by saying "hello sweetheart." (Doc. 18 at 6, ¶ 44) (internal quotation marks omitted). Plaintiff informed Defendant Carignan that this made her uncomfortable.

         On January 29, 2014, Plaintiff attended a training event and during the lunch break Defendant Moreland allegedly stroked his hand up and down her back multiple times. Plaintiff reported this incident to Defendant Carignan and Lieutenants Evans, Kirkpatrick, and Perkins. Plaintiff alleges that supervisors did not respond to her complaints and that she became the "butt of their jokes" as they referred to Defendant Moreland as "her boyfriend." Id. at 6-7, ¶ 51 (internal quotation marks omitted). Plaintiff states that she feared she would suffer repercussions if she attempted to further pursue her concerns.

         On or about February 6, 2014, Plaintiff raised her concerns with then Chief of Police Eugene M. Wrinn. He instructed her to provide a written list of her concerns and she did so.

         In March 2014, Plaintiff attended a mediation session with Defendant Moreland during which he apologized to her and thereafter "ceased sexually harassing Plaintiff[.]" Id. at 7, ¶ 55. She alleges "[u]pon information and belief [Defendant] Moreland did not suffer any disciplinary consequence for his behavior." Id. at 7, ¶ 56. Defendant Moreland is now the Town's Assistant Manager. Until her resignation in August 2018, Plaintiff alleges she was forced to interact with Defendant Moreland as part of her employment. Plaintiff contends that the supervisors who failed to respond to her complaints regarding Defendant Moreland did not receive any disciplinary consequences as a result.

         In 2008, Plaintiff applied for a promotion to the rank of sergeant and received that promotion. Other members of the Brattleboro PD allegedly complained that Plaintiff was only promoted because of her gender. Plaintiff asserts that the misogynistic attitudes of her supervisors and colleagues made it difficult for her to act in a supervisory role. She complained to Lieutenant Evans regarding the alleged "openly misogynistic and insubordinate attitudes of her inferior officers but he did not take any action." Id. at 8, ¶ 63.

         In 2010, Lieutenant Evans allegedly instructed Plaintiff to truthfully inform a judge that a delay in applying for a search warrant had been caused by delays in the State's Attorney's Office. Defendant Fitzgerald was angered by Plaintiff placing the blame on the State's Attorney's Office and refused to believe that Plaintiff had been following the order of Lieutenant Evans in doing so even after Lieutenant Evans confirmed her report. Plaintiff alleges that Defendant Fitzgerald then demoted Plaintiff from her position as detective sergeant but did not discipline Lieutenant Evans. Plaintiff later discovered that Defendant Fitzgerald had agreed to fill her former detective sergeant position with a male colleague prior to the incident with the court. Thereafter, Plaintiff successfully grieved the demotion and was returned to the rank of sergeant. Plaintiff, however, was not restored to the detective position which was retained by the male officer who replaced her.

         On or about April 5, 2016, Plaintiff was promoted to the rank of lieutenant on a probationary basis. On or about May 5, 2016, during the probationary period, her promotion was cancelled, and she was demoted to sergeant.[1] Plaintiff alleges she was provided reasons for her demotion which included failing to ensure that subordinate officers completed their daily case descriptions before finishing their shifts. Plaintiff alleges that this "failure" is "commonplace and that none of the male supervisors have incurred a disciplinary consequence for failing to correct this behavior." Id. at 8-9, ¶ 73 (internal quotation marks omitted). Plaintiff further contends that the reasons for her demotion were pretextual because they were not consistent with the evaluations of her performance during the probationary period. Plaintiff asserts that she was informed her demotion was further attributable to her failure to improve the performance of a subordinate officer. Plaintiff claims Brattleboro PD records demonstrate that this subordinate officer's performance was worse under male supervision, but that none of the male supervisors was disciplined or demoted. Plaintiff alleges that Defendant Elwell approved her demotion to sergeant and personally approved of all of the allegedly discriminatory discipline imposed on her.

         On or about July 14, 2016, Defendant Carignan placed an open-ended five-day notification restriction on Plaintiffs eligibility to adjust her work schedule because two of her subordinate officers had finished their shifts without completing a daily report. Plaintiff alleges that similarly situated male supervisors were not subjected to discipline on the same grounds. Plaintiff allegedly "frequently asked [Defendant] Carignan to rescind the restriction but she did not receive a meaningful answer for the next eleven months." Id. at 10, ¶ 82.

         On June 6, 2017, Plaintiff informed Defendant Fitzgerald that she was in the process of complaining to the Equal Employment Opportunity Commission ("EEOC") regarding the unlawful discrimination to which she had been subjected. The restriction on her ability to adjust her work schedule was immediately rescinded "without adequate explanation." Id. at 10, ¶ 84.

         On March 20, 2017, Plaintiff alleges she was forced to undergo a full internal affairs investigation regarding the shooting of a cat that she suspected was rabid. She contends that male officers who have shot suspected rabid animals have not been subjected to an investigation.

         Defendant Carignan informed Plaintiff, on or about November 9, 2016, that she had made mistakes and instructed her supervising lieutenant to "counsel" her regarding the mistakes. Id. at 10, ¶ 87 (internal quotation marks omitted). Plaintiff met with her supervising lieutenant and they agreed she was not the sergeant who had made the mistakes in question. Defendant Carignan was informed that a different sergeant was responsible for those mistakes, but he allegedly continued to refer to them as examples of Plaintiffs poor job performance.

         Defendant Fitzgerald ordered Plaintiff to meet with him and Defendant Carignan regarding her use of sick leave. At a May 1, 2017 meeting, Plaintiff attempted to respond to Defendant Carignan's questions, but he allegedly "became enraged and abusive and accused Plaintiff of being 'a liar' adding that 'even though I have no way of proving it, I'm going to call it what it is, it's bullshit."' Id. at 10-11, ¶ 92. Defendants Fitzgerald and Carignan then allegedly subjected Plaintiff to verbal abuse which culminated in Defendant Fitzgerald shouting at Plaintiff to "get the fuck out of my office." Id. at 11, ¶ 93 (internal quotation marks omitted). Following this encounter, Plaintiff was visibly distressed and, as she left the meeting, crying in view of her colleagues and subordinate officers.

         On or about March 9, 2017, Lieutenant Perkins completed an annual review of Plaintiffs work performance that was generally positive. On or about May 1, 2017, Defendant Carignan allegedly instructed Lieutenant Perkins to alter his review to reflect a more negative opinion; when he refused to do so, Defendant Carignan added an unwarranted and discriminatory negative supplement to Plaintiffs review.

         Plaintiff alleges that on or about June 8, 2017, Defendant Carignan informed her that she would be subjected to a disciplinary suspension and loss of pay because she pursued a motorist with a suspended driver's license who was driving at a high rate of speed at night without headlights on the wrong side of the road. Plaintiff further alleges that male officers have not been disciplined for pursuing motorists in comparable situations.

         Plaintiff asserts that she was a member of the Bicycle Special Team for many years while she was employed by Brattleboro PD. The other member of the team is a female colleague. Plaintiff alleges that Brattleboro PD has six other special teams and the male officers on those teams receive a $500 annual stipend in exchange for their services. Plaintiff further alleges that she and her female colleague requested and were denied the same stipend for their work.

         Certified as the sole female Field Training Officer ("FTO") in 2004, Plaintiff asserts that she was entitled to a $500 annual bonus, but Brattleboro PD refused to use her as an FTO and, on that basis, denied her the bonus although similarly situated male colleagues received one. She is also the only certified FTO that Brattleboro PD refused to use for a non-disciplinary reason.

         Although she made repeated attempts to address the alleged unlawful harassment by making complaints to supervisors and filing grievances, Plaintiff claims Defendants Elwell and Moreland, who were aware of her complaints, failed to direct Brattleboro PD to take corrective action. On or about June 7, 2017, the Town allegedly retained Stephen Ellis, Esq. to investigate Plaintiffs complaints. Plaintiff met with ...


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