Police lawsuit heads to court

City seeks to dismiss remaining claims of dispatcher

Former Gilroy Public Safety Dispatcher Patricia Harrell’s wrongful termination lawsuit against the city and its police department still survives, despite a federal judge’s ruling this summer that dismissed most of her original allegations

A Feb. 7, 2019 hearing on the case is scheduled at the U.S. District Court in San Jose, where Judge Lucy Koh will hear the city’s motion to dismiss the rest of Harrell’s claims that she was discriminated against, treated unfairly and wrongfully terminated from the position she held at Gilroy Police Department for 25-plus years

Specifically, the City of Gilroy and its police department, among other listed defendants, filed a motion Oct. 17 to dismiss Harrell’s allegations of age discrimination, gender discrimination, failure to take steps to prevent discrimination and harassment, failure to investigate or take corrective action, retaliation, supervisory liability and violation of federal civil rights

In a lengthy court filing listing the rationale for the city’s request to dismiss the allegations, the city’s attorneys claim that Harrell failed to support her claims with factual evidence or, in some instances, failed to demonstrate that the defendants violated any laws or policies. The motion claims Harrell “re-engineered alleged facts” after the judge previously dismissed some of her original allegations

The city also argues that the defendants, as city employees, are entitled to “qualified immunity” from at least one of Harrell’s claims

“Plaintiff has had more than ample opportunity to allege plausible claims and has not done so,” concludes the city’s motion, prepared by attorney Carmen Plaza de Jennings. “At this juncture, dismissal with prejudice is appropriate and warranted.

Harrell’s attorneys, of the Costanzo Law Firm in San Jose, responded in an Oct. 31 filing that the city “misrepresented” Harrell’s allegations and the defendant is merely seeking to delay the proceedings in the lawsuit. Harrell also accuses the city and other defendants of raising new arguments against claims and statements she has been making since 2017.

Harrell’s Oct. 31 filing says the city’s motion to dismiss the lawsuit is “based on the disingenuous allegation that (Harrell) deleted all factual allegations relating to age and gender discrimination.

“Plaintiff respectfully requests that defendants’ motion be denied, or in the alternative, be given leave to amend,” Harrell’s response to the city’s motion to dismiss concludes

Also named as defendants in Harrell’s lawsuit are the Gilroy Police Department, former police chief Denise Turner, Police Capt. Joseph Deras, Capt. Kurt Svardal, police communications supervisor Steve Ynzunza and Gilroy Human Resources Director LeeAnn McPhillips

Harrell, who is in her 50s, was fired from her job as a Gilroy police and fire dispatcher in March 2016. She originally filed the wrongful termination lawsuit in August 2017, at that time alleging pervasive sexual misconduct within the city’s police department, in addition to the current allegations.
Harrell’s current active complaint is the third one she has filed since 2017. She and her attorneys have amended the complaint twice since then, based on direction from the judge

On Aug. 13, Judge Koh issued a ruling that dismissed nine of Harrell’s 15 bullet-pointed allegations from her previous complaint. The 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.

In September, Harrell submitted her latest amended complaint in response to the judge’s dismissal of these claims. The city’s latest motion to dismiss is based on this amended complaint.

In her response to the city’s Oct. 17 motion, Harrell included as exhibits documentation of her previous efforts to appeal her termination. This includes a Dec. 29, 2016 complaint filed with the California Department of Fair Employment and Housing, which was subsequently withdrawn due to Harrell’s intent to file a lawsuit.

Also in Harrell’s exhibits submitted to the court is a March 28, 2016 letter from Harrell’s attorney at the time to McPhillips, arguing the appeal of her firing. Harrell was terminated following an internal affairs investigation into a complaint that she made racially insensitive remarks to a colleague.
A Sept. 1, 2015 letter from the city’s HR department to Harrell, included in Harrell’s exhibits, states she was being investigated for “your possible violations of the city’s human resources rules and regulations.”

Harrell’s attorney in 2016 claimed Harrell was denied her due process rights throughout the investigation, and she suffered stress-related medical conditions due to the way she was treated by her supervisors who retaliated against her for pointing out their unfair conduct, the letter appealing her termination states.

Furthermore, an Oct. 31, 2016 letter from the City of Gilroy’s HR department to Harrell notified her that the city investigated her claims from earlier that year that her supervisor tried to convince her to have sex with him and his wife, maintained nude photographs of his wife in his police department locker and that the Gilroy police management knew about these allegations. The city’s letter concludes the investigation determined her claims were false based on “the preponderance of the evidence.

The 2015 investigation into Harrell’s conduct or claims was not the first. Harrell’s exhibits also include a 2008 letter from Turner, police chief at the time, notifying her she was being investigated for an unspecified infraction. Harrell’s lawsuit previously stated this was the police department’s reaction to allegations that she verbally attacked two officers.

Harrell maintains her City of Gilroy employers discriminated against her based on her age and gender. Specifically, Harrell alleges that her supervisor, Deras, once told her during an argument that she and “the people who have been here a long time think your shit don’t stink.” Plus, as their professional relationship deteriorated in the months leading up to her termination, Deras allegedly assigned Harrell to the “worst possible shift” even though, as senior dispatcher, she was entitled to first choice of work shift assignments, her complaint says.

Harrell’s lawsuit also claims Deras “overloaded Ms. Harrell with dispatcher duties, training duties and overtime” in the months leading up to her termination, Harrell’s complaint says.

When Harrell complained to other police department supervisors and the city’s HR department, she was ignored, Harrell alleges.

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