Attorneys ready to share evidence in police lawsuit

Federal judge partially rejects city attempt to dismiss case

A federal judge last week rejected a second attempt by the City of Gilroy to dismiss a lawsuit filed by a former police dispatch employee, clearing the way for the evidence-gathering phase of the litigation.

Judge Lucy Koh of the Northern District Court of California in a Feb. 5 ruling denied most of the city’s argument for dismissing former Public Safety Dispatcher Patricia Harrell’s lawsuit, and granted a portion of it.

As of the latest ruling, Harrell’s complaint, originally filed in August 2017, now contains six “causes of action” against the City of Gilroy and its police department. The Feb. 5 ruling also dismissed Harrell’s complaints against five current and former city employees—including former Police Chief Denise Turner Sellers— whom Harrell had named as defendants.

Koh’s ruling also suggested the judge is growing impatient with the city’s efforts to dismiss the lawsuit.

The city and previous individual defendants have now twice filed motions to dismiss Harrell’s lawsuit in full. The first such motion in summer 2018 ended with Koh dismissing several of the allegations on Harrell’s initially much longer list, and preserving some. Harrell subsequently filed an amended complaint, and the city moved to dismiss those in October 2018.

In the Feb. 5 ruling, Koh worried that if any more motions are filed, it would risk delaying court proceedings beyond the “close of fact discovery” date of May 17. Beyond that date, neither the plaintiff nor the defendant may take depositions, make evidence requests or obtain information and documents from the other side.

Koh’s ruling explained that the city could have raised the more recent objections at an earlier date, and described the defendants’ strategy as a “scattershot approach to attacking Harrell’s causes of action” that “impedes speedy resolution” of the lawsuit.

Harrell’s lawsuit against the city has been increasingly whittled down from a 15-item list of accusations—many of them salacious—and more than half a dozen defendants since she first filed in 2017. With the judge’s Feb. 5 ruling, the list is now down to six allegations against the city and its police department in relation to her firing, and in relation to previous internal investigations of Harrell while she was employed with the city. Her current allegations are age discrimination, gender discrimination, failure to prevent discrimination and harassment, failure to investigate or take corrective action, retaliation and Title VII retaliation.

Koh’s Feb. 5 ruling removed Harrell’s claims that the city and other defendants are guilty of supervisory liability and violation of civil rights.

Harrell, who is in her 50s, was fired from her job as a Gilroy police and fire dispatcher in March 2016. Harrell was terminated following an internal affairs investigation into a complaint that she made racially insensitive remarks to a colleague and mistreated trainees. Her lawsuit claims the city and police department discriminated against her based on her gender and age, treated her unfairly and wrongfully terminated her.

Previously named as individual defendants in Harrell’s lawsuit were former Gilroy Police Chief Denise Sellers (formerly Turner), Police Capt. Joseph Deras, Police Capt. Kurt Svardal, Communications Supervisor Steve Ynzunza and Gilroy Human Resources Director LeeAnn McPhillips. However, the Feb. 5 ruling dismissed Harrell’s only remaining allegation—supervisory liability—against these defendants.

The city still believes the remaining claims in Harrell’s lawsuit are false, and will aim to prove it as the litigation proceeds, McPhillips said on behalf of the city.

“At each step of this case, claims cited by the plaintiff have been dismissed. In addition, all of the individually named defendants have been dismissed with prejudice,” McPhillips said in an email to the Dispatch. “The city continues to believe that the remaining claims are without merit and will continue to vigorously defend this case.”

Harrell’s attorney, Andrea Justo of the San Jose-based Costanzo Law Firm, said she is moving ahead with the gathering and disclosure of evidence after the Feb. 5 ruling. Likely to play a key role in this process are personnel files of Harrell and her former co-workers and supervisors, which are maintained by the city clerk’s office.

McPhillips said the city’s own records retention policy requires the city to maintain personnel files of all employees, including police, for at least six years after an employee has left city hall, “if there is no activity” such as pending litigation. These files include performance evaluations, disciplinary history, training records, medical or workers compensation leave and personal information.

The city destroys files once a year—typically in December—that have been maintained beyond this timeline and are not the subject of legal action, McPhillips added. “It’s a space management thing,” she said.

McPhillips did not immediately know the exact date of the most recent records purge, nor the content or volume of files destroyed.

In Harrell’s case, she was fired less than six years ago, so the city has maintained her personnel file. “We have preserved everything related to this case,” McPhillips said.

In October 2016, attorney Lori Costanzo sent former police chief Turner a letter on Harrell’s behalf, asking the police department to preserve Harrell’s “employment file and/or any other reports, notes, documents, emails, photographs and/or electronically stored information” in its possession.

A new state law that took effect Jan. 1, which allows greater public access to police personnel files, is currently held up by litigation in other locales and may prove a point of contention as Harrell and her attorneys request personnel files from the City of Gilroy.

The Gilroy Police Department’s policy on personnel files includes a detailed schedule for how long the department must keep different types of employee records. Formal citizen complaints against an officer can be purged five years after the complaint date if there is no ongoing litigation. Other disciplinary files and “investigations of non-citizen-initiated complaints not pending litigation or legal proceedings” can be destroyed two years after the complaint date, the Gilroy police policy states.

The city is represented in the Harrell case by attorneys from the Hirschfeld Kraemer firm, based in San Francisco.

The next scheduled proceedings in the case are a March 6 case management conference and an April 12 court-ordered mediation session. Proceedings take place at the Northern District federal courthouse in San Jose.