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Phillips v. City of South Bend

United States District Court, N.D. Indiana, South Bend Division

September 6, 2017

JOY PHILLIPS, Plaintiff,
v.
CITY OF SOUTH BEND, et al., Defendants.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT

         Plaintiff, Joy Phillips, was a police officer for the City of South Bend. After suffering alleged discrimination, sexual harassment, and retaliation, she resigned in 2016 after 17 years with the force. Her claims fall into three categories: (1) being passed up for promotions because she is a woman; (2) being subjected to sexual harassment in the workplace; and (3) being unfairly disciplined and retaliated against after filing an EEOC charge. Defendants, City of South Bend, Ronald Teachman (the former police chief), and Scott Ruszkowski (the current police chief), move for summary judgment on all claims [DE 43]. Because I find that the promotion decisions were made for legitimate, non-discriminatory reasons, and the alleged sexual harassment was not severe or pervasive, summary judgment is granted on the first two claims. However, there are genuine issues of material fact that exist regarding the many investigations and disciplines that occurred right after Phillips filed her EEOC charge, so Defendants' motion for summary judgment is denied on the retaliation claims.

         Factual Background

         Phillips served as a police officer for the City of South Bend from April 19, 1999, to July 26, 2016. Her duties mainly consisted of serving as a Patrolman First Class, and she was assigned to the midnight shift. Additionally, Phillips served on the Hostage Negotiation Team and as a Field Training Officer (“FTO”), training new officers.

         The failure to promote charges stem from when Phillips sought promotion to the rank of Sergeant in the Spring of 2015. Fifteen candidates applied. Phillips was passed over in favor of three men who got the positions - Ryan O'Neill, Martin Mullins, and Harvey Mills. Three captains interviewed the candidates and scored each interview. Ruszkowski (then the Division Chief), then blindly graded the “best work” or “best case” submitted by each candidate after their names had been removed from the documents. [DE 44-4 at 3.] Ruszkowski's scores were then combined with the interview panel scores, and the candidates were then ranked. [Id. at 3-4.] Phillips ranked 9th out of the 15 candidates. [Id. at 4.] Although Teachman made the final decision about who to promote, he was not on the panel that graded the candidates, he does not know why Phillips was ranked in the middle of the pack, and he merely received and ultimately adopted the recommendation that the 3 males be promoted. [Teachman Dep. at 46, 39-40.] While Phillips argues that she had a better disciplinary record than the promoted officers, the record shows the contrary: O'Neill had 15 letters/reports of commendation and 4 letters of reprimand; Mullins had 14 letters/reports commending his work, 2 letters of discipline, and 1 verbal warning for drawing a smiley face on a banner; Mills had 36 letters/reports of commendation and only 1 letter of discipline and 2 verbal warnings; and while Phillips also had commendations and submitted letters of recommendation, she had 56 disciplinary issues and uses of force, and two incidences that concerned Brady/Giglio issues. [DE 44-4 at 8; Ruszkowski Aff. at ¶ 9.]

         With regard to the sexual harassment claims, Phillips alleges she suffered sexual innuendo and other derogatory remarks that created a hostile work environment. Phillips claims her supervisor, Lt. Tim Lancaster, told a young cadet officer that he should watch out for Phillips because even though she was married, she would attempt to bed him. [Phillips Dep. at 48.] Lancaster denies he said this, but Phillips claims he also “belittled her” when she tried to talk with Lancaster about the comment. [Id. at 49.] She later learned that Lancaster told another supervisor that Phillips was promiscuous and flirtatious with new officers and should not be a FTO. [Id. at 50.] Another officer, Dan Skibbens, insinuated that Phillips was promiscuous when she corrected him about her married name, and he replied, “[y]eah, this week it is.” [Id. at 58-59.] During roll call, when Phillips asked what type of uniform she should wear to an upcoming class, Paul Daley responded, “for you, a miniskirt and high heels.” [Id. at 88.] While Phillips did discuss some of these incidents with her Captain, she did not file any formal complaints with the City. [Cadotte Dep. at 30-31, 37, 51.]

         Phillips filed her Charge of Discrimination with the EEOC on October 23, 2014. Following that event, there was a dramatic increase in the number of investigations and disciplinary actions against Phillips. Prior to filing the charge, Phillips had received three citizen complaints that were sustained in her 14 years of duty, and was the subject of three administrative investigations. [DE 44-4 at 5-6.] Since filing the EEOC charge, Phillips has been the subject of 12 administrative investigations, resulting in 7 imposed or proposed disciplines. [Phillips Dec. ¶ 10.] Six weeks after filing the EEOC charge, Phillips received a 5-day suspension on December 2, 2014, for allegedly making defamatory statements about another officer who was in the process of being hired. [Phillips Dep. at 118-30.] Phillips alleges she received punishment for her conduct in that incident which actually occurred a year and a half earlier. [Id. at 113.]

         During the months after the EEOC charge, one supervisor, Sgt. Mullins, filed multiple complaints against Phillips resulting in Internal Affairs investigations. [Ruszkowski Dep. at 160; Phillips Dec. ¶ 23.] One investigation that Phillips was informed of on October 28, 2015, was that Phillips violated a policy by disregarding other officers from a ShotSpotter alert (telling other officers not to respond to an electronically-detected report of gunshots fired). [Phillips Dec. ¶ 13; 23(F).] This occurred despite Phillips telling Mullins this was a common practice and other officers did the same thing. Id. Mullins counseled male officers involved in the same incident, while Phillips was subjected to formal discipline - a letter of reprimand was placed in her file. [Ruszkowski Dep. at 96; Phillips Dec. at ¶ 23(F); DE 44-3 at 9-10.]

         Mullins also charged Phillips with being insubordinate on October 28, 2015, because he ordered her not to speak to another officer about a lethality assessment. [Ruszkowski Dep. at 120.] The conversation was tape recorded, and Phillips alleges that she asked Mullins if she needed to speak to the other officer and Mullins replied that she did not need to, because he already did. [Phillips Dep. at 137-38.] Phillips says that Mullins did not give her a direct order not to speak to another officer about the assessment. Id. The discipline for that incident was imposed on March 2, 2016, a letter of reprimand was placed in Phillips' file, and she received a 5-day suspension without pay. [Phillips Dec. at ¶ 23(G); DE 44-3 at 15-16.]

         Phillips also alleges that Mullins deliberately withheld one of her police reports so he could discipline her for going off shift without filing a report. [Phillips Dec. ¶¶ 14-20.] Phillips received a letter of reprimand in her file and a 3-day suspension without pay for this. [DE 44-3 at 13-14.]

         An investigation was also undertaken and Phillips received a letter of reprimand in her file and a one-day suspension without pay for allegations that she failed to collect the syringes used by a heroin overdose victim and note this in her report before the end of her shift. [DE 44-3 at 11-12.] According to Phillips, she arrived on that scene at 5:45 a.m., revived the overdose victim, and the paramedics removed the syringes from the victim's pants. [Phillips Dec. ¶ 25.] She then accompanied the victim to the hospital, went home to change, and returned to begin an overtime shift. [Phillips Dep. at 135.] By the time Sgt. Mullins' request came at 6:45 a.m. to collect the syringes, Phillips' shift had ended. So she collected them on her overtime shift and submitted a corrected report at 11:01 a.m., which was technically the next business day, but just about 3 hours after the incident occurred. [Phillips Dec. ¶ 26.]

         The most serious investigation involved an incident at Fox Street, where Chief Ruszkowski accused Phillips of making contact with a barricaded subject without having been called to the scene by Dispatch or a commander. Phillips alleges she had communicated by text message and by phone with the officer on the scene and with Aaron Cassel (commander of the Hostage Negotiation Team), and they were aware that she was going to speak to the barricaded person. [Phillips Dec. ¶¶ 28-29.] During the investigation which occurred 5 months after the incident, Phillips had trouble remembering the details of the conversations, so she asked the Assistant Director of Communications to produce the Dispatch records. [Id. at ¶¶30-32.] She never got the tape recording, but Phillips got in trouble because she did not know that she had to get the Chief of Police's approval to request an “on demand” phone line. [Id. at ¶ 34.] According to Ruszkowski, however, Phillips was disciplined mainly because she called police dispatch to have herself assigned to the scene and then, without the knowledge of the officers on site, called the barricaded person and began negotiating with him. [Ruszkowski Aff. ¶¶ 20-25.] Phillips received a 45-day suspension without pay for this incident and removal from the Hostage Negotiation Team. [DE 44-3 at 17-20.]

         Phillips alleges that many of the investigations are for incidents long past, violating the collective bargaining agreement specifying that discipline must be proposed within 60 days of commencing an internal affairs investigation. [DE 45 at 5-6.] In response, the City claims the reason for the delay was the result of unexpected staffing disruptions. [Schweizer Aff. ¶ 8.] However, the City acknowledges that after Internal Affairs Investigator, Lt. Lee Ross, resigned in 2015, his replacement was hired just three months later. [Id. at ¶ 11.]

         Ruszkowski summoned Phillips to his office on March 2, 2016, and gave her the charges that totaled a 54-day suspension without pay and removal from the Hostage Negotiation team. [Ruszkowski Aff. ¶¶ 27-29.] When Phillips refused to sign the documents acknowledging receipt, ...


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