United States District Court, D. Vermont
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
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").
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has withdrawn her claims against Brattleboro PD because she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
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.
Allegations of the Amended Complaint.
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).
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.
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
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
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
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.
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.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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
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.
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
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