Judge slices claims in sex lawsuit

Plaintiff to update her complaint against city, police, officers

A federal judge has dismissed more than half of the 15 “causes for action” cited by a former Gilroy public safety dispatch employee in a lawsuit that alleges pervasive sexual misconduct within the city’s police department.

Some of Harrell’s allegations against the city and police department by Patricia Harrell, a public safety communicator for the city for 26 years, still stand, including age discrimination, gender discrimination, failure to investigate or take corrective action, retaliation and violation of federal civil rights. None of Harrell’s defendants has made a motion to strike these causes for action, according to the ruling.

The lawsuit filed in August 2017 by Harrell accuses the city and her superior officers of unlawfully firing her from her post in 2016 because she refused to engage in an alleged culture of misconduct. She also accuses her union representatives of failing to adequately represent her after the city fired her.

But on Aug. 13, U.S. District Court Judge Lucy Koh of the Northern District of California issued a ruling that dismissed nine of Harrell’s 15 bullet points identifying the specific laws and procedures that she accuses the defendants named in her lawsuit of violating.

Koh’s ruling dismissed Harrell’s claims of sexual harassment, failure to take steps to prevent discrimination and harassment, retaliatory termination (previously stricken from the 2017 complaint) negligent supervision, negligence, assault, negligent and intentional infliction of emotional distress, supervisory liability, and negligent and intentional misrepresentation.

Koh’s ruling dismisses these allegations as they relate to former Gilroy Police Chief Denise Turner, Officer Royce Heath, Captain Joseph Deras, Captain Kurt Svardal, Dispatcher Steve Ynzunza and Gilroy Human Resources Director and Risk Manager LeeAnn McPhillips—all of whom are named as defendants in Harrell’s lawsuit. The ruling also dismisses allegations against the American Federation of State, County and Municipal Employees (AFSCME) and AFSCME Business Agent John Tucker.

McPhillips said the Aug. 13 ruling is “a favorable decision” for the city and police department. “I think the documents speak for themselves,” McPhillips said, referring to the 30-page Aug. 13 ruling and the city’s Feb. 27 motion to dismiss the causes for action that accuse specific city employees of wrongdoing.

The judge’s ruling notes that for some of the dismissed allegations, Harrell can submit an amended complaint providing more specific details. Harrell’s attorney, Andrea Justo of the San Jose based Costanzo Law Firm, said Harrell “plans to amend her first amended complaint (filed December 2017) pursuant to the judge’s order and plans to proceed accordingly with her claims.”

That means some of Harrell’s accusations against the officers and union reps could survive if she amends her complaint accordingly. Specifically, Koh dismissed the sexual harassment allegation against Heath, Deras and Ynzunza with “leave to amend.” Plus, the accusation of negligent supervision against Tucker and AFSCME was dismissed “without prejudice,” meaning Harrell could file it again in the future. Also, the allegation of supervisory liability against Turner, Heath, Deras, Svardal, Ynzunza and McPhillips was dismissed with leave to amend. And the accusation of negligent and intentional misrepresentation against AFSCME and Tucker was dismissed without prejudice.

Sexual harassment

One of Harrell’s more salacious complaints is that she was fired March 21, 2016 for refusing to engage in sexual misconduct within the police department. This misconduct included police officers having sex with members of the Gilroy Explorers youth organization; sexually explicit conversations among employees at work; supervisors watching pornography in front of their employees; co-workers participating in sex parties at private homes; and other nudity and sexual acts at work-related parties and social events.

Harrell’s lawsuit specifically accuses Heath, Deras and Ynzunza, as well as the city and Gilroy PD as a whole, of sexual harassment.

However, Koh’s ruling dismissing the allegation agrees with the defendants’ motion to dismiss because the alleged misconduct does not meet the legal standard for sexual harassment. The defendants’ “alleged actions were not severe or pervasive enough to constitute a hostile work environment as a matter of law,” Koh’s ruling states.

Furthermore, Harrell’s complaint does not demonstrate how the alleged misconduct was directed to her purely on the basis of her gender—a requirement for a valid sexual harassment claim—according to Koh’s ruling.

Some of the misconduct mentioned in Harrell’s complaint also does not specify when the actions took place, and thus there is no way for the judge to tell if they were within the statute of limitations, Koh’s ruling adds. Harrell can amend her complaint to specify the dates the alleged harassment took place.

Hed: No damages specified

Koh dismissed other causes of action from Harrell’s lawsuit for a variety of procedural reasons: she failed to exhaust all of her due process options in an attempt to gain some remedy to her termination; she did not correctly begin the litigation process by filing a claim with her employer; she did not comply with the California Tort Claims Act; and she failed to identify which of her civil rights were violated (although Harrell could amend this aspect of the lawsuit to include more details).

Harrell’s lawsuit does not specify the amount of damages she is seeking from the city and other defendants. Her complaint notes she was fired three years before her full retirement age.

One of the officers named in Harrell’s amended complaint, Royce Heath, was disciplined by his superiors, though the reason was never revealed.

The City of Gilroy and the police department have not revealed any details about why Harrell

was fired.

Harrell’s complaint says she was disciplined in 2005 for leaving work 14 minutes early to check on her friend and Gilroy Police Officer Ray Hernandez, who had suffered a medical emergency and subsequently died. She also claims the police department conducted an internal affairs investigation of her in 2008, in response to allegations she verbally attacked two officers.

In September 2015, Harrell was notified by her superiors that the city was investigating her again, this time for a complaint that she made racially insensitive remarks to a colleague. Harrell claims the context of her remarks was misunderstood.

Harrell was placed on administrative leave in January 2016 and terminated about two months later, according to her lawsuit.

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