Lesbian NYC Police Officer Suffers Dismissal of Sexual Orientation Discrimination Claims Despite Colleague’s Disgustingly Offensive Harassment

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By Arthur S. Leonard. This article appears in the May Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe:

Lisette Torres, a former New York City policy officer, sued the City of New York claiming that for several years towards the end of her 18-year tenure in the Department, she was the victim of sexual orientation discrimination, hostile work environment, and retaliation. In an April 22 ruling, U.S District Judge Lorna G. Schofield granted the City’s motion to dismiss the discrimination and hostile work environment claims. Torres v. City of New York, 2019 U.S. Dist. LEXIS 68168, 2019 WL 1765223 ( S.D.N.Y.) The City did not move to dismiss the retaliation claim, for the obvious reason that based on the pleadings, as summarized by the court, the City will probably lose that claim on the merits.

They really have to do a better job of educating police officers with supervisory and managerial responsibility about refraining from taking adverse actions against officers shortly after they file discrimination charges. It’s not rocket science! But in reading numerous opinions in employment discrimination cases, it seems that employees who refrain from complaining about discrimination for fear of suffering retaliation for complaining are not being paranoid — they are being pragmatic.

In this case, Officer Torres, who was not then generally “out” in the Department, began to suffer discrimination when she brought her domestic partner to an “off-duty police social event” in June 2013. While Torres, her partner Lisa Velez, and another officer, Migdalia Chu, were in the restroom, “Chu saw Velez leave the restroom and said, ‘You should have used the men’s bathroom, bitch.’” A supervising officer was present but did nothing.

“After the June 2013 incident, when Plaintiff was in common precinct areas with Chu, Chu would make grunting and animal noises direct at Plaintiff,” wrote Judge Schofield. “When Plaintiff notified her supervisors, they offered to move Plaintiff’s locker into her office to avoid contract with Chu.” Instead, of course, of taking any sort of disciplinary action against the offending Chu because, naturally, the complaining officer is the problem in the eyes of improperly trained supervisors.

The next noted incident took place on August 10, 2015, when Torres and Chu were both on duty at the 48th Precinct. “When Chu saw Plaintiff, Chu began making grunting and animal noises and called Plaintiff a ‘filthy animal,’” according to Chu’s Complaint. “In front of several officers Chu repeatedly yelled ‘go eat pussy, you lesbian bitch,’ and another officer was forced to restrain Chu to prevent her from attacking Plaintiff. Chu’s public comments forced Plaintiff to come out as gay to her colleagues.”

A few days later, Torres discussed with two sergeants filing a complaint with the Department’s Office of Equal Employment Opportunity (OEEO), but they discouraged her, undoubtedly aware that in the NYPD filing a discrimination complaint invites retaliation… Either heedless of this or assuming that her good record of long service would protect her, Torres filed the complaint anyway and — guess what? “After filing her complaint, Plaintiff started experiencing ‘antagonistic treatment by her peers and supervisors.’ Plaintiff was reassigned from her regular night-shift to a less lucrative day shift, her requests to be scheduled on different shifts from Chu were ignored and she was denied overtime after previously working approximately 25 hours of overtime per month. Plaintiff was also denied participation in community engagement events, including Harmony Day, in which she had been a leader for several years.”

The OEEO offered mediation to try to get Chu and Torres to settle their differences, but after two apparently fruitless sessions, Torres decided she wanted a more formal hearing. “Around December 2015, after OEEO conducted an incomplete investigation, Plaintiff received OEEO’s determination that her complaint did not ‘rise to the level of employment discrimination in the workplace’ and further referred ‘the matter to the Commanding Officer [in their precinct] for appropriate attention and further corrective action to preclude a reoccurrence.’” Torres felt compelled to seek a transfer out of the precinct, resulting in going to the bottom of the seniority list in a new precinct and loss of her position as Auxiliary Police Coordinator. Also, the loss of her overtime opportunities caused her to postpone her planned retirement for financial reasons.

Sound like a good case of sexual orientation discrimination and hostile environment under Title VII, the NY Human Rights Law, and the NYC Human Rights Ordinance? Not to Judge Schofield, who granted the City’s motion to dismiss these claims.

The judge concluded that Torres’s Complaint “does not sufficiently allege that Plaintiff’s sexual orientation was a motivating factor in the alleged adverse employment actions.” Technically true, as far as that goes. “Adverse employment actions” of a tangible nature, i.e., emanating from the Department, such as denial of overtime and unwanted shift change, were apparently due to her complaining about the discrimination and harassment, not directly because of her sexual orientation. Thus, as we noted above, the City did not move to dismiss the retaliation count, since on that they don’t have any apparent defense.

As to the hostile environment harassment claim, it is inescapable that at least Chu’s harassment was motivated by Torres’ sexual orientation. However, Judge Schofield concluded that the handful of incidents described were inadequate to meet the “severe and pervasive” requirement under Title VII and the State law. She said that two incidents over the course of two years were insufficient to constitute harassment that was “severe and pervasive,” apparently overlooking the allegation that Chu taunted Torres with her disgusting animal noises at other times as well, to the point where when it became clear that the Department was not going to do anything serious about it (which might include disciplining Chu for her unprofessional conduct and transferring her away from Torres), Torres sought a transfer that involved personal and financial sacrifice. Not enough for Judge Schofield, however.

Also, although the City law expressly extends broader protection, Schofield felt that even there, it was inappropriate to fix liability on the City (i.e., the NYPD) for Chu’s misconduct. “The hostile work environment claim under NYCHRL is dismissed because the Complaint does not allege that Chu’s conduct is attributable to Defendant,” wrote Schofield. “The Complaint contains no allegation that Defendant ‘acquiesced’ in Chu’s discriminatory comments, and as discussed above, the Complaint states that Defendant took corrective action by facilitating mediation. As the Complaint fails to allege facts sufficient to impute Chu’s conduct to Defendant under federal law, it also fails under the stricter NYCHRL standard.” This seems to fall rather short of the City Council’s articulated instruction to federal courts that Title VII and New York Human Rights Law precedents should not be used to analyze hostile environment claims under the City’s Human Rights Law, and conveniently overlooks the fact that lots of “acquiescence” to Chu’s misconduct is implied by the Complaint.

The judge did note, however, in summarizing her ruling: “For clarity, the retaliation claims, which were not the subject of this motion, remain.” Now the City will likely attempt to settle the case, having achieved dismissal of the discrimination and hostile environment claims and thus likely reduced its financial exposure.

Torres, “on behalf of herself and other similarly situated individuals,” is represented by Erica Tracy Kagan and Yetta G. Kurland of the Kurland Group, New York, N.Y., and Kathleen Belle Cullum, Indiana Legal Services, Indianapolis. (Yes, we wondered why an Indiana legal services attorney would be co-counsel in this case, but have no basis for speculation.) This frustrating decision seems ripe for appeal to the 2nd Circuit.

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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