VANDEGRIFT v. CITY OF PHILADELPHIA
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 1/11/2017. 1/11/2017 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CITY OF PHILADELPHIA
: CIVIL ACTION
: NO. 16-2999
January 11, 2017
When a female detective complains about specific sexual assaults and harassment
creating a hostile work environment involving certain officers, the police department must
recognize, like any employer, its obligation to comprehensively and impartially address and
evaluate appropriate remedies. The female detective advised the department of specific credible
claims of harassment and sexual assaults by identified officers in allegedly sexually charged
police stations towards her and other women officers over many years including in 2014,
resulting in an internal investigation of her complaints without remedy but instead changing the
experienced female detective’s conditions of employment.
The facts today are largely disputed as each side accuses the other of misconduct and the
female detective also engaged in sexually charged banter claiming she needed to engender trust
in a dangerous position. In the accompanying Order, we deny the City’s motion for summary
judgment as the jury must evaluate what happened between the female detective and her male
superiors as well as evaluate the propriety of the City’s response to these specific claims.
Facts in the light most favorable to Ms. Vandegrift.1
In May 2004, twenty-one year old Michele Vandegrift entered the Philadelphia Police
Academy.2 In December 2004, the City assigned this young female officer to the 24th District,
where she worked for three years.3 In September 2007, the City transferred Ms. Vandegrift to the
9th District, where she worked until 2011.4 In 2011, after taking the detective’s exam and
scoring first among females and twentieth overall out of over 2,000 examinees, 5 Ms. Vandegrift
became a detective and the City assigned her to the South Detectives Division.6 She remained in
the South Detectives Division until 2014, when the City transferred her to the Southwest
Division. Ms. Vandegrift continues to work with the Philadelphia Police Department.
A. Alleged sexual harassment in the Philadelphia Police Department.
Ms. Vandegrift specifically claims she worked in an environment allegedly riddled with
sexual harassment, consisting of everything from sex-based comments to sexual assault by a high
level employee—Chief Inspector Carl Holmes. After complaining about the harassment, the
City transferred her to another squad, told the squad she had filed an internal complaint, and
charged her with misconduct.
1. Allegations of sexual assault against Chief Inspector Carl Holmes.
Chief Inspector Carl Holmes joined the Police Department in August 1990.7 The City
promoted him to Inspector in 2002, and he became a licensed attorney in 2003. In 2008, the City
demoted him to Captain for engaging in sexual activity in a police-issued vehicle. After he
challenged the demotion, the City reinstated him as Inspector. In 2012, the City promoted him to
his current position—Chief Inspector. The only two ranks which are higher than Chief Inspector
are Deputy Commissioner and Commissioner.
During Chief Inspector Holmes’ employment, two female lower-ranking employees—
including Ms. Vandegrift—accused him of sexual assault. He did not receive any discipline as a
result of the sexual assault allegations against him. Possibly recognizing the harm created by his
alleged conduct, Chief Inspector Holmes agrees—all things being equal—being a police officer
in the City is more difficult if you are a female.8 He also agrees female police officers hear
comments about sex while working.9
Ms. Vandegrift alleges Chief Inspector Holmes sexually assaulted her in 2007. In early
2007, leading up to the sexual assault, Chief Inspector Holmes called Ms. Vandegrift on the
phone on at least three occasions and made sexual comments to her. For example, Chief
Inspector Holmes told Ms. Vandegrift he “would love to bend her over” and his “most favorite
part of a woman’s body” and the part of the body which turned him on most “was the part
between her hips to her thighs.”10
Around February or March 2007, Chief Inspector Holmes summoned Ms. Vandegrift to
his office during her midnight shift.11 In the office, Ms. Vandegrift saw Chief Inspector Holmes
out of uniform in an Eagles jersey and smoking at his desk. 12 Chief Inspector Holmes
approached Ms. Vandegrift and told her he “wanted to know how wet [she] was.”13 He then
unzipped her pants, stuck his hand down her pants and underwear, and inserted his finger into
her vagina.14 He pulled his hand out, tasted his finger, and remarked “it tasted good.”15 Ms.
Vandegrift said something like “I’d better go” and left the office.16 She recalls smelling alcohol
on his breath.17 Chief Inspector Holmes denies calling Ms. Vandegrift into his office, unzipping
her pants, sticking his hands down her pants, and inserting his finger into her vagina.18
Officer Christa Hayburn alleged Chief Inspector Holmes sexually assaulted her in 2006.
She states she attended Chief Inspector Holmes’ going-away party at a bar. During the event,
Officer Hayburn received a phone call from a coworker, and she took the call outside. While
outside, Chief Inspector Holmes came outside, grabbed her hand, and guided her across the street
to his car. While they were behind car, he pulled her in to kiss her and told her he always
thought they “had something.”19 Officer Hayburn told him they should go back inside, and he
instructed her to let him know when she would be leaving.
When Officer Hayburn returned to the bar, she went directly to the bathroom, called her
coworker back, told him what happened, and asked him for help. After some time passed, Chief
Inspector Holmes opened the door, looked in, and said, “Don’t forget to tell me when you’re
leaving.”20 As part of her escape plan, Officer Hayburn rushed out of the bar while on the phone
with her coworker.
Just before Officer Hayburn would have started the ignition in her car, Chief Inspector
Holmes ran out of the bar to Officer Hayburn and guided her out of the car and into his car.
Officer Hayburn explained repeatedly, “[M]y husband is waiting for me. I have to go. This isn’t
right. You are my boss.”21 After Chief Inspector Holmes entered the car, he reached over and
started kissing her “really hard,” touched her breasts, and put his hands on the outside of her
pants toward her genitals.22 He then reached into the back of Officer Hayburn’s pants and
digitally penetrated her vagina, after which he pulled out his penis and placed Officer Hayburn’s
hand on top of it. Chief Inspector Holmes attempted to have intercourse and oral sex, but Officer
Hayburn said, “No.”23 Chief Inspector Holmes eventually ejaculated.
Officer Hayburn returned to her car, but she could not drive because she “was
uncontrollably crying.”24 She called her coworker, told him what happened, and he agreed to
meet her at her location. After a couple of hours of talking, Officer Hayburn drove home and
told her husband what happened.
In February 2008, Officer Hayburn made an internal complaint regarding Chief Inspector
Holmes’ conduct. As part of the investigation, the City impounded Inspector Holmes’ city-issued
vehicle, conducted a forensic examination, and found “seminal stains containing spermatozoa.”25
Inspector Holmes denied engaging in sexual activity with Officer Hayburn. He instead claims he
had sexual relations with a female civilian in his city-issued vehicle on two occasions, which he
claims caused the presence of his semen in the vehicle. The investigators did not ask for the
name of the civilian or for her description. Chief Inspector Holmes did not provide investigators
any contact information for the civilian. Although Officer Hayburn had two witnesses who
corroborated her account of the events, the investigation resulted in a finding of “not
2. Sex-based comments and conduct by coworkers and supervisor-level
While Ms. Vandegrift worked in the 24th District, “not a week went by” she did not
allegedly experience “demeaning, inappropriate, barbaric” sex-based comments.27
Vandegrift testified this harassment followed her throughout her employment; she put up with
sex-based comments and gawking stares on a “constant basis.”28 For example, she repeatedly
heard male officers discuss “what they would like to do to [her and other female employees]
sexually” and heard them comment about women’s breasts and backsides.29
Throughout Ms. Vandegrift’s employment, her male colleagues and supervisory-level
employees, including Lieutenant Anthony LaSalle, Detective James Priadka, and Inspector
Anthony Washington, stared at her in an intimidating and uncomfortable manner.30 When she
complained about how stares made her uncomfortable, Lieutenant LaSalle told her she should
take the stares as a compliment.31
Early on in her employment, Ms. Vandegrift became the subject of rumors she engaged
in sexual relationships with coworkers, and these rumors resurfaced a number of times
throughout her employment. For instance, in 2005, Ms. Vandegrift heard rumors within her
squad she engaged in sexual relationships with “multiple police officers” in her squad.32
Ms. Vandegrift’s coworkers and supervisors made inappropriate sexual comments toward
her throughout her employment. In 2005 or 2006, Ms. Vandegrift attended a softball game for
the 24th District, and two male colleagues—Officers Fran Kober and Rob Phillippe—
commented on how good she looked and told her they would “hit that.”33 At some point
between 2005 and 2007, one of Ms. Vandegrift’s male colleagues—Officer McLoud—told her
she sounded sexy over the radio and he got a “woody” when he heard her.34
In 2007, Ms. Vandegrift came to work with a sunburn on her face. 35 Sergeant Alfred
Corson asked Ms. Vandegrift if she got the sunburn while engaging in “roadhead” with her thenfiancé.36 Also in 2007, Officer Terrance O’Hanlon commented about a new female police officer
who had just graduated from the police academy, “Oh my God, did you see her. She’s just my
type. I’d fuck the shit out of her.”37 Around the same time period, Ms. Vandegrift’s male
supervisor—Officer Alfred Corson—told her she would have to be the one to make the first
move.38 Ms. Vandegrift understood this to mean he wanted her to initiate a sexual relationship
with him, as he could not do so as her supervisor.39
In 2009, during a patrol, Officer Joe Davis told Ms. Vandegrift his girlfriend’s vagina
was too small and hurt his penis during sex, after which Officer Davis unzipped his pants and
pulled out his penis.40 The same year, Ms. Vandegrift heard Chief Inspector Holmes had forced
a female to give him fellatio.41 Also in 2009, Lieutenant Ed Thompson told Ms. Vandegrift he
knew of at least one male employee who sent a picture of his penis to a female officer. 42 Around
the same time period, Corporal James Gillespie told Ms. Vandegrift the officers in the squad she
worked in at the time thought she had been “fucking” her male supervisor, Sergeant Thomas
In 2009 or 2010, Ms. Vandegrift heard her supervisor—Sergeant John Wood—had said a
female officer—Officer Gale Bryant—had been “banging” her supervisor, Paul DeCarlo.44 In
2010, Officer Davis told Ms. Vandegrift there were rumors she “was ‘fucking’ him.”45 Around
the same time period, while Ms. Vandegrift walked to the women’s locker room, Officer Luis
Santiago left the men’s locker room with his pants unzipped.46 Before zipping up his pants,
Officer Santiago made sure to stop and see Ms. Vandegrift looking at him.47
Vandegrift told him to never do that again, Officer Santiago rolled his eyes and said,
In 2010 or 2011, a male officer slapped Ms. Vandegrift on her backside while walking
by.49 Around the same time period, Officer Matt Harris told Ms. Vandegrift Officer Mike
Givens sent Officer Gayle Hawthorne a picture of his penis. 50 Also around the same time,
Sergeant John Wood—Ms. Vandegrift’s supervisor—commented on a female officer returning
from maternity leave, stating “she would just have to make up her mind, did she want to be a
mom or a cop, she can’t do both.”51
In 2011, Ms. Vandegrift’s supervisor—Sergeant John Wood—told her about a rumor of a
female officer who had an affair with a higher level male sergeant in their squad. 52 During the
conversation, Sergeant Wood said, “No man would ever turn down a blow job.”53
Vandegrift understood this to mean Sergeant Wood wanted her to offer him a blow job, and he
would accept it.54
Also in 2011, Lieutenant Ed Thompson told Ms. Vandegrift Sergeant
DeAngelo (male) said he was “fucking the shit out of” Officer Gayle Bryant.55
In 2011, Ms. Vandegrift and Officer George Gaspar were driving together and stopped to
talk to two male colleagues—Officers Vernon Ray and James Owens.56 After they drove away,
Officer Gaspar showed Ms. Vandegrift a text message one of the officers sent him, stating, “are
you fucking that”.57 Also in 2011, Officer Rick Soto put his hand over Ms. Vandegrift’s hand,
rubbed it, and said, “you like that, baby?”58
Around the same time period, male officers
including Officer Chris Simone, Officer Pat Gallagher, and Officer Givens gawked at women
walking by, commented women in Center City were much better looking than women in the rest
of the city, and said in reference to certain women, “I’d fuck her.”59
In 2012, after Ms. Vandegrift told Lieutenant James DeAngelo she wanted to have
children with her husband, he responded, “so you’re fucking a lot.”60 Also in 2012, Detective
Justin Carlton referred to a female detective as a “bitch” in front of other employees, including
In 2012 or 2013, after a female complainant left the police station, male detectives
including Mike McKenna commented, “Did you see that girl’s ass” and “you can bounce a
quarter off of her ass.”62 Around the same time period, Detectives Neil Aitken and George
Bailey referred to Detective Michele Hunker—an aide to the Captain—as “a blow job.”63
In 2013, shortly after Ms. Vandegrift returned from maternity leave, her male supervisor,
Sergeant Maurice Hampton said, “you can’t be a good mom and a good cop.”64 Since 2013, Ms.
Vandegrift saw Detective John Ruth kept a large coffee mug on his desk which said, “Get Off
In 2014, Ms. Vandegrift heard male detectives, including John Ruth, comment about a
female district attorney, “that’s a lot of ass.”66
Also in 2014, upon hearing rumors a female
lieutenant would join the division, Detective John Ruth said their male supervisor—Sergeant
Maurice Hampton—would not be happy.67 When Ms. Vandegrift asked him why, Detective
Ruth said “because she is a woman, and [Sergeant Hampton] was not going to want to report to a
On June 25, 2014, when Ms. Vandegrift returned from vacation, Detective Ruth asked
her where she went.69 After Ms. Vandegrift said she went with her family to Ocean City,
Detective Ruth said he thought she went to Hedonism.70 Ms. Vandegrift understood Detective
Ruth’s reference to Hedonism as referencing a vacation spot in Jamaica known to be a “sexually
wild” destination for nudists and swingers.71 When Ms. Vandegrift told Detective Ruth she
would never go there for vacation as she is married with a baby, he responded “that [is] an ‘even
better reason to go.’”72
In July 2014, Detective Ruth looked at Ms. Vandegrift’s chest and said, “What, are you
trying to show off your cleavage today?”73 He then laughed and punched Ms. Vandegrift in the
arm.74 Detective James Priadka also looked at Ms. Vandegrift’s chest and laughed.75
3. The Jerry Jones text message.
In August 2014, Detective Ruth sent Ms. Vandegrift and her male colleagues a group text
message depicting someone who looked like Ms. Vandegrift with her head pressed against the
crotch of Jerry Jones, asking “Does anyone know this girl with [Captain] Larry Nodiff (Whiskey
Harry/white hook)?”76 Detective Neal Aitken wrote in response, “Yeah, yeah. She looks
familiar. Yeah yeah I think I’ve got it.”77 Ms. Vandegrift is known to say, “yeah, yeah”
frequently.78 Ms. Vandegrift understood Detective Ruth’s text as insinuating Ms. Vandegrift had
a sexual relationship with her previous captain, Larry Nodiff.79 Ms. Vandegrift is aware a
stripper recently accused Jerry Jones of sexually assaulting her.80 The woman who brought the
lawsuit alleged she took pictures of Jerry Jones with other women, including the picture
Detective Ruth sent.81
Although the text offended Ms. Vandegrift, she responded to the text message in a joking
manner because she did not want to risk losing her colleagues’ trust by complaining about the
text.82 She later deleted her responsive text messages because she wanted to show her mother
the Jerry Jones text message but she did not want her mother to see her text responses.83
B. Ms. Vandegrift complains about gender discrimination and sexual harassment.
On August 25, 2014, Ms. Vandegrift made an internal Equal Employment Opportunity
(“EEO”) complaint of gender discrimination.84 On the same day, Ms. Vandegrift called Captain
Martin Derbyshire—captain of the South Detectives Division—and informed him of her
Shortly before Ms. Vandegrift made the internal EEO complaint, she had complained to
her supervisor—Lieutenant LaSalle—about the manner in which her male colleague assigned
jobs requiring more overtime to male detectives.85 Ms. Vandegrift had also complained to
Lieutenant LaSalle her male colleagues started rumors she and the Lieutenant were “fucking”
each other.86 In response, Lieutenant LaSalle said he could not say anything to Ms. Vandegrift’s
male colleagues because, if he did, it would look like he “was sticking up” for her. 87 When Ms.
Vandegrift showed Lieutenant LaSalle the Jerry Jones text message, he responded the squad was
“fucking stupid,” but did nothing to address the inappropriate text message.88
On August 27, 2014, Ms. Vandegrift filed her first Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”).89 Ms. Vandegrift’s EEOC Charge and
internal EEO complaint included allegations of sexually discriminatory conduct, including but
not limited to: 1) the Jerry Jones text; 2) the fact male employees received more complex
assignments, resulting in more overtime; and 3) an incident in which a male sergeant asked if
anyone had the (male) lieutenant’s phone number, and when Ms. Vandegrift said yes and handed
him her phone, the Sgt. said, “hold up he’s not going to answer the phone and say hey baby?”90
On October 27, 2014, Ms. Vandegrift filed an Amended Charge.91 The Amended Charge
included more allegations of sexual harassment, including the incident when Chief Inspector
Holmes stuck his finger into Ms. Vandegrift’s vagina and the incident when Officer Davis
exposed his penis to her while on a patrol.92 The Amended Charge also included a claim the City
retaliated against her by filing the first Charge.93 Ms. Vandegrift subsequently filed a second,
third, and fourth Amended Charge.
C. The City’s response to Ms. Vandegrift’s complaints.
Shortly after Ms. Vandegrift made her internal EEO complaint, Captain Derbyshire spoke
with his superior and told him he would transfer Ms. Vandegrift from 3 Squad to 2 Squad.94 The
superior, an Inspector, responded, “that would be a good move.”95 Captain Derbyshire then told
Lieutenant Morton—who is responsible for 2 Squad—he would transfer Ms. Vandegrift to 2
Squad because she filed the internal EEO complaint.96 Ms. Vandegrift did not want to leave 3
Squad, where she worked the night shift, because she needed the night shift schedule.97 Ms.
Vandegrift’s mother normally watched her son, but at the time her mother could not because she
After Ms. Vandegrift’s transfer to 2 Squad, employees in the South Detectives Division
learned of Ms. Vandegrift’s internal EEO complaint.99
Detective Robert Kerwin told Ms.
Vandegrift her “squad” told him “not to trust her because she was fucking the last out lieutenant
and that she backstabbed him by making a complaint against him.”100 Detective Kerwin also
told Ms. Vandegrift his squad had a meeting before Ms. Vandegrift’s transfer in which Lieutenant
Morton, Sergeant Steven Vanore, and Sergeant Curtis Miller told everyone she made an EEO
complaint and to “watch what they say around her.”101
Ms. Vandegrift testified members of 2 Squad would not to talk to her: “I used to work at
We got along quite well.
However, after Detective Kerwin told me what had
happened, suddenly we were strangers. They turned their back on me. They wouldn’t to [sic]
speak to me. They didn’t even want to act like I was in the room.”102
Lieutenant Timothy Linneman worked in the EEO unit of the Internal Affairs Bureau of
the Philadelphia Police Department from December 2012 to December 2014.
responsibilities included handling investigations
involving EEO-related complaints.103
Lieutenant Linneman testified it could possibly be a violation of the City’s EEO policy for
employees to say an individual who made an EEO complaint could not be trusted.104 Lieutenant
Linneman also testified doing so would be a form of retaliation.105 Captain Derbyshire also
testified he would be concerned if a detective said another detective could not be trusted; he
would have addressed it if he knew about it.106
On September 5, 2014, Lieutenant Morton informed Captain Derbyshire Ms. Vandegrift
“was upset and that she did not – it wasn’t working out. That the 2 Squad situation was not
working out.”107 Captain Derbyshire spoke with Inspector Anthony Washington about the issue,
who informed Captain Derbyshire he would speak with his supervisor—Chief Inspector Myron
Patterson.108 Inspector Washington told Captain Derbyshire Ms. Vandegrift would be reassigned
to the Southwest Division.109
The Southwest Division is an extremely busy and hectic place to work. 110 There is a
perception within the Philadelphia Police Department assignment to the Southwest Division is a
punishment.111 The Southwest Division is also a longer commute for Ms. Vandegrift than the
Captain Derbyshire told Ms. Vandegrift the City reassigned her to the
Southwest Division for her protection.113 When she asked what he meant, Captain Derbyshire
said they could not move all the male detectives at once, so they were going to move her for her
protection.114 Captain Derbyshire never spoke with Ms. Vandegrift about whether she wanted to
move out of the South Division before he talked with Inspector Washington. 115
Derbyshire never considered moving the male detectives who engaged in the conduct Ms.
Vandegrift had complained about.116
D. The City’s investigation into Ms. Vandegrift’s allegations.
Between August 2014 and June 2015, Ms. Vandegrift underwent five interrogations from
investigators in the Internal Affairs Division regarding her complaints. On August 27, 2014, the
City assigned Lieutenant Linneman to investigate Ms. Vandegrift’s complaints. 117 As a result of
the investigation, the City found only one employee—Detective Ruth—violated the City’s EEO
policy. The City has yet to discipline Detective Ruth.118
Ms. Vandegrift retained Michael J. Torchia, Esq., as an expert in workplace
investigations. He opines the City’s sexual harassment complaint procedures and investigative
practices failed to satisfy a number of workplace investigation standards:
It is my opinion that the City failed to conduct reasonable
investigations, as using internal investigators does not meet
accepted standards for workplace investigations;
It is my opinion that the City’s method of investigation was not
reasonable as it failed to meet accepted standards for workplace
investigations for a variety of reasons, including but not limited to:
a. The investigators improperly applied a criminal law
standard to some of Det. Vandegrift’s complaints;
b. The investigators failed to investigate all claims, including
no investigation of Det. Vandegrift’s retaliation complaints;
c. The investigators failed to interview or investigate, or
attempt to interview or investigate anyone not currently
employed by the Philadelphia Police Department;
d. The investigators’ questioning methods were unreasonably
brief and shallow;
e. The investigations should have been conducted by a single
f. The investigators failed to review or consider background
information about the alleged harassers;
g. The investigators failed to judge the credibility of the
complainant, witnesses and alleged harassers.119
Lieutenant Raymond Saggese has been an investigator in the internal affairs division for
sixteen years. During Lieutenant Saggese’s interview of Ms. Vandegrift during the investigation,
Lieutenant Saggese told Ms. Vandegrift certain employees have “carte blanche” to act the way
they do, and he had “run into a brick wall” regarding other investigations.120 He also told Ms.
Vandegrift other sexual allegations against “higher-ups” are swept under the rug.121
E. The City charges Ms. Vandegrift with misconduct.
On July 29, 2014, Ms. Vandegrift sent a Facebook message to four of her male colleagues
in her squad which included a picture of a baby whose facial expression reminded her of
Detective Ruth and included quotes from Detective Ruth:
John Ruth at 6 months. He’s saying- ‘yo Jim this job won’t make
me money’ ‘My payroll number is…’ ‘Get off my Dick’ ‘a good
detective is knowing when to work hard on a job and when to put
the crap aside’ ‘this is silly’ ‘you alright buddy?’ Yep, 30 years
later and not much has changed lol.122
Detective Ruth responded, “Lmao good one. But remember your [sic] next. Yeah
yeah.”123 Ms. Vandegrift testified she sent the message because she wanted to fit in with the
As part of the investigation, Ms. Vandegrift had an interview on August 29, 2014 with
Lieutenant Linneman.125 Ms. Vandegrift told Lieutenant Linneman about the Facebook message
during the interview.126 Lieutenant Linneman did not ask Ms. Vandegrift any questions about the
Ms. Vandegrift also provided Lieutenant Linnenman the Jerry Jones text message. 127 Ms.
Vandergrift told Lieutenant Linneman she did not have her responses to the Jerry Jones text
message.128 She candidly disclosed to him her comments may have been inappropriate.129
Lieutenant Linneman told her, “Don’t worry about it, it doesn’t matter, you’re the victim.”130
The City’s investigation into Ms. Vandegrift’s allegations resulted in a charge she violated
City policy by sending the Facebook message.131 The City also charged Ms. Vandegrift with
lying or attempting to deceive regarding a material fact during the course of the investigation. 132
These were the first disciplinary charges issued against Ms. Vandegrift during her entire
employment with the City.133
If an allegation of misconduct is made against a police officer, City policy requires the
police officer be questioned about the allegation.134 No one questioned Ms. Vandegrift regarding
any alleged misconduct on her part.135
Chief Inspector Christopher Flacco testified the City disciplined Ms. Vandegrift for the
Facebook message because she complained about similar conduct:
So do you agree with me, then, that the reason why
Vandegrift is being written up for the Facebook message is
because she made the complaint about similar conduct
You can make that assumption, yeah, that’s part of it.136
Ms. Vandegrift sued her employer, the City, for gender discrimination, hostile work
environment, and retaliation claims under Title VII of the Civil Rights Act of 1964, 137 the
Pennsylvania Human Relations Act (“PHRA”),138 and the Philadelphia Fair Practices
Ms. Vandegrift also sued the City under 42 U.S.C. § 1983 for having an
unconstitutional custom of treating female employees in the Police Department less favorably
than male employees. The City moves for summary judgment140 arguing Ms. Vandegrift failed to
exhaust her employment discrimination claims under the Philadelphia Fair Practices Ordinance,
her claims are untimely, and her claims fail as a matter of law.141
We disagree and deny the
City’s motion for summary judgment.
Ms. Vandegrift exhausted administrative remedies under the Philadelphia
The City argues Ms. Vandegrift failed to exhaust administrative remedies under the
Philadelphia Fair Practices Ordinance because she did not file a complaint with the Philadelphia
Commission on Human Relations. Ms. Vandegrift argues she exhausted administrative remedies
under the Philadelphia Ordinance because she administratively exhausted her employment
discrimination claims with the Equal Employment Opportunity Commission (“EEOC”) and the
Pennsylvania Human Relations Commission.
The PHRA authorized local governments to create human relations commissions with
“powers and duties similar to those . . . exercised by the [PHRC].”142 Based on this authority,
Philadelphia County passed the Philadelphia Fair Practices Ordinance (“Philadelphia
Ordinance”) and established the Philadelphia Commission on Human Relations (“Philadelphia
Commission”) to “administer and enforce all statutes and ordinances prohibiting discrimination
against persons because of race, color, religion or national origin” and “to receive . . . complaints
of . . . practices of discrimination against any person because of race, color, religion or national
The Philadelphia Ordinance prohibits, among other things, employment discrimination
based on sex and retaliation for exercising one’s rights under the Philadelphia Ordinance.144
Under the Ordinance, “[a]ny person claiming to be aggrieved by an unlawful employment . . .
practice may make, sign, and file with the [Philadelphia Commission] a verified complaint.”145
A complaint will not be considered by the Philadelphia Commission unless it is filed within 300
days of the unlawful practice.146 The Philadelphia Commission does not accept any complaint
“from any person who has filed a complaint with the Pennsylvania Human Relations
Commission with respect to the same grievance.”147
The Philadelphia Ordinance also contains a private right of action:
If a complainant invokes the procedures set forth in this Chapter,
that person’s right of action in the courts of the Commonwealth
shall not be foreclosed. If within one (1) year after the filing of a
complaint with the Commission, the Commission dismisses the
complaint or has not entered into a conciliation agreement to which
the complainant is a party, the Commission must so notify the
complainant. On receipt of such a notice the complainant may
bring an action in the Court of Common Pleas of Philadelphia
County based on the right to freedom from discrimination granted
by this Chapter.148
The Philadelphia Ordinance also provides, “Nothing in this Chapter limits the right of an
injured person to recover damages under any other applicable law or legal theory.”149
The Pennsylvania Supreme Court has not determined whether claims under the
Philadelphia Ordinance must be administratively exhausted. The Pennsylvania Commonwealth
Court and courts in our Circuit have held claims under the Ordinance must satisfy the exhaustion
requirement.150 Courts in our Circuit hold the exhaustion requirement is satisfied by filing a
complaint with another administrative body as long as the claims under the Philadelphia
Ordinance are predicated upon the same facts as the claims before the administrative body.151
For example, in Ives v. NHS Human Services, Judge Joyner held Ives’ filing with the
EEOC satisfied the Ordinance’s administrative exhaustion requirement.152 Ives did not mention
her Philadelphia Ordinance claims in her EEOC charge, but she based her Philadelphia
Ordinance claims on the same facts with the same core grievance.153 Similarly, in Ahern v.
Eresearch Technology, Judge Jones found Ahern satisfied the Philadelphia Ordinance’s
administrative exhaustion requirement by filing an EEOC charge dealing with the same issues as
her claims under the Philadelphia Ordinance.154
Although we find these decisions persuasive, they did not address the text of the
“In interpreting local ordinances, we apply rules of statutory
Our “primary goal” is ascertaining the intent of the Philadelphia City
Council.156 “Where a statute is unambiguous, its plain text will not be disregarded in furtherance
of its spirit.”157 A statute is ambiguous where there are two or more reasonable interpretations.158
To ascertain legislative intent from the ambiguity, we must consider the factors listed in 1 Pa.
C.S. § 1921(c).159 These factors include, among other things, “[t]he mischief to be remedied,”
“the object to be attained,” and “the consequences of a particular interpretation.”160
We find the Philadelphia Ordinance is partially ambiguous.
The plain text of the
Philadelphia Ordinance requires the complainant file with the Commission and requires, as a
condition of suing in court, the receipt of a notice of the right to sue by the Commission.161 The
Philadelphia Ordinance prohibits the complainant from filing a complaint with both the
Philadelphia Commission and the Pennsylvania Human Relations Commission, even though
filing a complaint with the Pennsylvania Human Relations Commission is a prerequisite to
obtaining relief under the PHRA. These provisions of the Philadelphia Ordinance would thus
preclude a complainant from seeking relief under the PHRA. These provisions conflict with the
provision of the Philadelphia Ordinance providing, “Nothing in this Chapter limits the right of an
injured person to recover damages under any other applicable law or legal theory.” 162 These
competing provisions create an ambiguity.
Upon reviewing 1 Pa. C.S. § 1921(c), we conclude the Philadelphia City Council
intended claims under the Philadelphia Ordinance satisfy an administrative exhaustion
requirement, which can be satisfied by filing a complaint with another administrative body. In
enacting the Philadelphia Ordinance, the City Council recognized the harmful effects of
employment discrimination, which “tends to create breaches of the peace and impose added
burdens upon the public for relief and welfare.”163
The Council enacted the Philadelphia
Ordinance “to assure that all persons regardless of . . . sex . . . enjoy the full benefits of
citizenship and are afforded equal opportunities for employment.”164 This purpose is more fully
achieved if aggrieved individuals may employ all available statutory remedies.
Forcing an individual to choose between either enforcing rights under the PHRA or
enforcing rights under the Philadelphia Ordinance runs contrary to the stated purpose of the
City Council likely prohibited the Philadelphia Commission from accepting
complaints filed with the Pennsylvania Human Relations Commission to preserve administrative
resources. We conclude City Council intended to permit aggrieved individuals to pursue relief in
a court of competent jurisdiction so long as the issues raised in the lawsuit are administratively
Ms. Vandegrift’s dual-filing of her charges of discrimination with the EEOC and the
Pennsylvania Human Relations Commission satisfied the Philadelphia Ordinance exhaustion
requirement because her claims under the Philadelphia Ordinance are predicated upon the same
facts as the claims in her EEOC charges.
Ms. Vandegrift’s claims are not barred by a statute of limitations.
The City argues acts forming the basis of her hostile work environment and § 1983
claims occurring before 2013, including the 2007 sexual assault, are time barred because they are
isolated or sporadic and not sufficiently linked to constitute one unlawful employment practice.
The City argues the 2007 sexual assault is an individually actionable discrete act which cannot be
considered for the purposes of Ms. Vandegrift’s hostile work environment claim.
Ms. Vandegrift’s claims under Title VII, the PHRA, and § 1983 must satisfy timing
requirements. Under the PHRA, Ms. Vandegrift must file an administrative complaint within
180 days of the alleged act of discrimination.165 Under Title VII, Ms. Vandegrift must file an
administrative complaint within 300 days of the unlawful employment practice.166 Under §
1983, Ms. Vandegrift’s claims must arise within the two years preceding the filing of the
complaint.167 Ms. Vandegrift filed her First EEOC Charge on August 27, 2014. She filed an
Amended EEOC Charge on October 27, 2014, in which she included allegations of the 2007
sexual assault and other allegations of harassment. One hundred eighty days before October 27,
2014 is April 30, 2014.
“The continuing violations doctrine is an ‘equitable exception to the timely filing
requirement.’”168 For the purposes of Ms. Vandegrift’s hostile work environment claim and
claim for the City’s supervisory liability, we distinguish between discrete acts and nondiscrete
acts. “Discrete discriminatory acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.”169 A discrete act “constitutes a separate actionable
unlawful employment practice”170 and “must be raised within the applicable limitations period or
they will not support a lawsuit.”171
A discrete act is an individually actionable unlawful
employment practice which includes “termination, failure to promote, denial of transfer, refusal
to hire, wrongful suspension, wrongful discipline, denial of training, wrongful accusation.”172
By contrast, “[a] hostile work environment claim is composed of a series of separate acts
that collectively constitute one ‘unlawful employment practice.’”173 Nondiscrete discriminatory
acts which are not individually actionable may be aggregated to form a hostile work environment
claim under the continuing violation doctrine.174 “[S]uch acts “can occur at any time so long as
they are linked in a pattern of actions which continues into the applicable limitations period.”175
To bring in nondiscrete acts occurring before the limitations period under the continuing
violation doctrine, Ms. Vandegrift must show: (1) “all acts which constitute the claim are part of
the same unlawful employment practice”; and (2) “at least one act falls within the applicable
limitations period.”176 In determining whether the harassment is part of a “persistent, ongoing
pattern” constituting one unlawful employment practice, we may consider the subject matter and
frequency of the underlying acts.177
Subject matter is defined as “whether the violations
constitute the same type of discrimination.”178
Our Court of Appeals has not instructed as to whether a sexual assault is a discrete act.
District courts are split on this issue, including within our Circuit.179 The courts finding sexual
assault constitutes a discrete act rely on the prevailing definition of a discrete act as an act which
is individually actionable.180
At least one district court outside our Circuit held sexual assault did not constitute a
discrete act for the purposes of the defendant-employer’s motion to dismiss.181 The court
reasoned the employee did not allege the sexual assault “was distinct, isolated act of
discrimination” alleged to be “different in nature or distant in time from the remainder of her
One district court in our Circuit held a rape did not constitute a discrete act. 183 The
plaintiff’s supervisor raped her and subsequently harassed her almost every day by, among other
things, sexually assaulting her and sending her pornographic text messages. 184 Judge Cercone
held “[w]hile the rape may have been sufficient, alone, to meet the requirements of a hostile
work environment claim, [the supervisor’s] conduct . . . clearly suggests ‘a persistent, ongoing
pattern’ characteristic of a continuing violation.”185 “The subsequent unwelcome sexual assaults
and harassment occurring within the 300 day period make the rape and all other conduct
occurring prior to [the 300 day period] part of the whole for purposes of the hostile work
The Supreme Court has made clear sexual assault or rape can form the basis of a hostile
work environment claim. In Meritor Savings Bank v. Vinson, the Supreme Court held as a
general matter a plaintiff may pursue a hostile work environment theory under Title VII. 187 In
Meritor, the plaintiff’s supervisor repeatedly harassed her and even raped her on several
occasions over a period of four years.188 The Court explained sexual harassment is actionable if
it is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and
create an abusive working environment.’”189 Under this standard, the plaintiff’s allegations,
“which include not only pervasive harassment but also criminal conduct of the most serious
nature,” were “plainly sufficient” to state a claim for hostile work environment.190
We conclude Ms. Vandegrift’s 2007 sexual assault should be considered under the
continuing violation doctrine as a severe form of harassment––even if it is individually
After Meritor, rape can form the basis of a hostile work environment claim.
Consistent with Meritor, the Supreme Court in Morgan identified several types of discrete acts—
including “termination, failure to promote, denial of transfer, or refusal to hire” 191—which
cannot be aggregated under the continuing violation doctrine.
The Court did not identify rape or sexual assault as a discrete act. Nor would it make
sense to do so. Sexual assault is the most severe form of harassment, and severe harassment is
actionable under a hostile work environment claim.192 It would be anomalous to deem some
severe forms of harassment—such as rape or sexual assault—so severe they cannot be
aggregated under the continuing violation doctrine along with less severe acts of harassment.
Rather than focusing our inquiry on whether an individual act of harassment is so severe as to
constitute a discrete act, we instead focus on whether the act of harassment constitutes part of a
pattern of harassment constituting “one ‘unlawful employment practice.’”193 Under this inquiry,
it does not matter whether the 2007 sexual assault is actionable on its own. What matters is
whether the sexual assault is “part of the same unlawful employment practice.”194
Ms. Vandegrift provides sufficient evidence of a persistent, ongoing pattern of harassment
which includes the 2007 sexual assault. While Ms. Vandegrift worked in the 24th District, “not
a week went by” she did not experience “demeaning, inappropriate, barbaric” sex-based
comments.195 Ms. Vandegrift testified this harassment followed her throughout her employment;
she put up with sex-based comments and gawking stares on a “constant basis.”196 For example,
she repeatedly heard male officers discuss “what they would like to do to [her and other female
employees] sexually” and heard them comment about women’s breasts and backsides.197
The harassment also manifested in the form of rumors about Ms. Vandegrift having
sexual relations with coworkers. In 2005, Ms. Vandegrift heard rumors within her squad she
engaged in sexual relationships with “multiple police officers” in her squad.198 Rumors about
Ms. Vandegrift and other female officers having sexual relationships with coworkers and
supervisors resurfaced regularly during her employment.
In 2007, before his alleged sexual assault, Chief Inspector Holmes called Ms. Vandegrift
on at least three occasions and said sexual things to her, including he “would love to bend her
over” and his “most favorite part of a woman’s body” and the part that turned him on most “was
the part between her hips to her thighs.”199 In 2009, during a patrol, Officer Davis told Ms.
Vandegrift his girlfriend’s vagina was too small and hurt his penis during sex, after which
Officer Davis unzipped his pants and pulled out his erect penis.200
In 2010, Officer Davis told Ms. Vandegrift there were rumors she “was ‘fucking’
him.”201 In 2010 or 2011, a male officer slapped Ms. Vandegrift on her backside while walking
by.202 In 2012, after Ms. Vandegrift told Lieutenant James DeAngelo she wanted to have
children with her husband, he responded, “so you’re fucking a lot.”203 In 2013, shortly after Ms.
Vandegrift returned from maternity leave, her male supervisor, Sergeant Maurice Hampton said,
“you can’t be a good mom and a good cop.”204 In August 2014, Detective Ruth sent Ms.
Vandegrift and her male colleagues a text message depicting someone who looked like Ms.
Vandegrift with her head pressed against the crotch of Jerry Jones, asking “Does anyone know
this girl with [Captain] Larry Nodiff (Whiskey Harry/white hook)?”205 These discriminatory
acts, along with the other discriminatory acts alleged, share the same subject matter—sex—and
occur with sufficient frequency to be considered collectively under the continuing violation
doctrine. At least one act—the August 2014 text message—occurred within the limitations
period. Ms. Vandegrift provides sufficient evidence of a pattern of ongoing sexual harassment
occurring throughout her employment and into the limitations period.
Ms. Vandegrift may proceed on her hostile work environment claims under Title
VII, the PHRA, and the Philadelphia Ordinance.206
The City argues Ms. Vandegrift fails to satisfy the elements of a hostile work
environment: (1) she suffered intentional discrimination because of her sex; (2) she suffered
severe or pervasive discrimination; (3) the discrimination detrimentally affected her; (4) the
discrimination would detrimentally affect a reasonable person in similar circumstances; and (5)
the existence of respondeat superior liability.207 For summary judgment purposes, the City
contests only the severity or pervasiveness of the discrimination and the City’s supervisory
1. Ms. Vandegrift adduced evidence of severe or pervasive harassment.
To determine whether an environment is severe or pervasive, we must consider the
totality of the circumstances, including “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”208 “[T]he ‘conduct must be
extreme to amount to a change in the terms and conditions of employment.’”209 This analysis
“must concentrate not on individual incidents, but on the overall scenario.”210 “[T]he pervasive
use of derogatory and insulting terms relating to women generally and addressed to female
employees personally may serve as evidence of a hostile environment.”211
By way of example, in Brooks v. City of Philadelphia, the plaintiff—a police officer for
the Philadelphia Police Department—provided sufficient evidence to demonstrate severe or
pervasive sexual harassment.212 The plaintiff’s coworkers watched pornographic films while at
work and laughed at plaintiff while doing so.213 Male coworkers changed clothes in front of her.
“[T]he use of inappropriate language was rampant,” and male coworkers called her “bitch” and
Our learned colleague Judge Surrick concluded, “Any one of these
circumstances alone, and certainly all taken together, are sufficient to establish that Plaintiff
suffered a hostile work environment on account of her gender.”215
Based on both the frequency and severity of the alleged conduct, a reasonable jury could
conclude Ms. Vandegrift experienced severe or pervasive harassment. Ms. Vandegrift testified
she experienced sex-based comments or conduct at least weekly throughout her employment,
and she provided many specific examples. Ms. Vandegrift also claims Chief Inspector Holmes
sexually assaulted her and a coworker exposed his penis to her while they were in a patrol car.
Considering the totality of the circumstances, a reasonable jury could conclude Ms. Vandegrift
personally endured severe or pervasive harassment.
2. Ms. Vandegrift adduced sufficient evidence of the City’s possible respondeat
The City argues it took reasonable remedial measures in response to Ms. Vandegrift’s
complaint of harassment. “If supervisors create the hostile environment, the employer is strictly
liable, though an affirmative defense may be available where there is no tangible employment
action.”216 In cases where there is no tangible employment action, an employer may defeat
vicarious liability by showing “‘the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior,’ and that ‘the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.’”217
An employer is liable for a coworker’s harassment “only if the employer failed to provide
a reasonable avenue for complaint or, alternatively, if the employer knew or should have known
of the harassment and failed to take prompt and appropriate remedial action.”218 In other words,
“an employer may be directly liable for non-supervisory co-worker sexual harassment only if the
employer was negligent in failing to discover the co-worker harassment or in responding to a
report of such harassment.”219 For example, in Kidd v. Pennsylvania, Judge Van Antwerpen
found a genuine dispute of material fact as to whether the defendants’ remedial efforts were
appropriate where the defendants’ remedial efforts consisted of “speaking with” or “counseling”
the alleged harassers.220
A reasonable jury could conclude the City failed to respond appropriately to Ms.
After Ms. Vandegrift filed her internal EEO complaint, the City
conducted an investigation resulting in only one alleged harasser—Detective Ruth—charged
with violating City policy. The City has not yet disciplined Detective Ruth for his charged
misconduct. Captain Derbyshire admits he could have required harassment training, but he did
not do so. Instead, the City transferred Ms. Vandegrift to a different squad and then later to a
Ms. Vandegrift’s expert on workplace investigations recognized many deficiencies in the
investigation including: a) The investigators failed to investigate all claims, including Ms.
Vandegrift’s retaliation complaints; b) The investigators failed to interview or investigate, or
attempt to interview or investigate anyone not currently employed by the Philadelphia Police
Department; c) The investigators’ questioning methods were unreasonably brief and shallow; d)
The investigations should have been conducted by a single investigator; e) The investigators
failed to review or consider background information about the alleged harassers; and f) The
investigators failed to judge the credibility of Ms. Vandegrift, the witnesses, and the alleged
We find a genuine dispute of material fact as to whether the City properly
responded to Ms. Vandegrift’s harassment allegations and whether it exercised reasonable care to
correct the alleged harassment.
Ms. Vandegrift may proceed on her retaliation claims.
To state a prima facie case of retaliation under Title VII, Ms. Vandegrift must establish:
(1) she engaged in protected activity; (2) the employer engaged in conduct constituting an
adverse action either contemporaneous with or after the protected activity; and (3) a causal
connection between the protected activity and the adverse action.222
If Ms. Vandegrift
establishes a prima facie case, “the burden of production of evidence shifts to the employer to
present a legitimate, non-retaliatory reason for having taken the adverse action.”223 The burden
then shifts back to Ms. Vandegrift to prove “the employer’s proffered explanation was false, and
that retaliation was the real reason for the adverse employment action.”224
The City’s sole argument is Ms. Vandegrift cannot demonstrate she suffered a materially
Under Title VII’s anti-retaliation provision, Ms. Vandegrift must show a
“reasonable employee would have found the challenged action materially adverse, which in this
context means it well might have ‘dissuaded a reasonable worker from making or supporting a
charge of discrimination.’”225 In determining whether a reasonable worker would be deterred,
“[c]ontext matters.”226 “[T]he significance of any given act of retaliation will often depend upon
the particular circumstances” because “an ‘act that would be immaterial in some situations is
material in others.’”227 For example, “[a] schedule change in an employee’s work schedule may
make little difference to many workers, but may matter enormously to a young mother with
Ms. Vandegrift claims she suffered what we discern to be four possible materially adverse
actions: 1) supervisory-level employees labeled her as untrustworthy by telling her coworkers
she filed an EEO complaint; 2) her male colleagues spread rumors about her having a sexual
relationship with a lieutenant; 3) the City reassigned Ms. Vandegrift to another division where
work is extremely hectic and busy; and 4) the City charged her with misconduct following the
1. Supervisory-level employees labeled Ms. Vandegrift as untrustworthy by
telling her coworkers she filed an EEO complaint.
A reasonable jury could conclude City created an atmosphere where coworkers were
primed to distrust Ms. Vandegrift by telling them she filed an EEO complaint, and this
atmosphere could have dissuaded a reasonable worker from making a charge of discrimination.
After the City transferred Ms. Vandegrift to a different squad, the new squad held a meeting in
which supervisory-level employees told the squad Ms. Vandegrift made an EEO complaint and
to “watch what they say around her.”229 These employees had no apparent need to know about
Ms. Vandegrift’s internal EEO complaint. A reasonable jury could understand the statement by
the supervisory employees as implying Ms. Vandegrift could not be trusted.
Supervisory-level employees testified about the importance of trust in the Philadelphia
Police Department. Captain Derbyshire explained he would be concerned if a detective said
another detective could not be trusted; he would have addressed the issue if he knew about it.
Captain Derbyshire also testified if detectives do not speak with each other, it could affect the
detectives’ abilities to do their jobs. Lieutenant Linneman testified trust between police officers
is a “big deal.”230
Ms. Vandegrift also testified about the importance of coworker trust within the
Philadelphia Police Department. In response to a question regarding her joking response to the
Jerry Jones text message, Ms. Vandegrift explained:
[W]hen you’re in a male-dominated workplace, well,
particularly my male-dominated workplace, it’s almost like you’re
stored into groups. You know? You’re like that female that
complains, the rat, the one who breaks the code of silence, the one
you cannot trust. You’re a whore. You just fuck everybody.
You’re a lesbian. You’re, you’re butch. You’re a bitch. I mean,
this – these are what my male colleagues have said throughout my
Listen, if they’re going to put me in a category and call me
a whore, at least they trust me. I’m, I’m looking for somebody to
have my back. I was trained as a police officer. For so many years
I depended on these people to help save lives together and also to
have my back. I mean, I couldn’t survive on this job without trust.
So am I going to turn around and say, you know, “Hey guys, that’s
offensive,” and then put up this wall that they know, oh, okay,
she’s one of them, and then they, you know, write that somewhere
in their minds. I at the time was not willing to risk that.231
Ms. Vandegrift testified members of 2 Squad would not to talk to her: “I used to work at
We got along quite well.
However, after Detective Kerwin told me what had
happened, suddenly we were strangers. They turned their back on me. They wouldn’t to [sic]
speak to me. They didn’t even want to act like I was in the room.”232
Based on this evidence, a reasonable jury could conclude a reasonable woman in Ms.
Vandegrift’s position might have been dissuaded from making a charge of discrimination based
on the City’s act of telling her coworkers she filed an EEO complaint.
The cases cited by the City do not persuade us otherwise. In Van Dyke v. Partners of
Debevoise & Plimpton LLP, the court held the plaintiff did not allege sufficient facts
demonstrating a materially adverse action.233 The plaintiff alleged she suffered malicious gossip
and retaliatory and harassing comments from unidentified individuals connected to the
defendant, and these individuals leaked sensitive information about the plaintiff by posting the
information on the comment section of online articles.234 The court determined it could not
“conclude that unknown individuals with knowledge of [the plaintiff’s] EEOC complaints
against [the defendant] made comments on seemly [sic] unrelated articles on [the website] in
retaliation to her EEOC charges.”235 In contrast to the vague allegations of online posts by
unknown individuals in Van Dyke, Ms. Vandegrift adduces specific evidence of supervisory-level
employees advising Ms. Vandegrift’s coworkers she made an EEO complaint and to watch what
they say around her.
In Brooks v. City of San Mateo, the plaintiff returned to work after alleging sexual assault
against a coworker and noticed her coworkers shunned her, and she argued the shunning
constituted an adverse employment action.236 The Court of Appeals for the Ninth Circuit held
“[b]ecause an employer cannot force employees to socialize with one another, ostracism suffered
at the hands of coworkers cannot constitute an adverse employment action.”237 There were no
facts demonstrating the employer facilitated the coworker ostracism. By contrast, Ms. Vandegrift
demonstrates evidence supervisory-level employees played a role in creating a distrustful
The remaining cases cited by the City are not persuasive because they do not use the
relevant standard. In 2006, the Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White held
a plaintiff claiming retaliation must demonstrate the action might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.238 The cases from the Second
Circuit cited by the City use a different standard which preceded Burlington, requiring “a
‘materially adverse change’ in the terms and conditions of employment.”239
2. Lower level employees’ conduct cannot be imputed to the City.
Although the conduct of supervisory-level employees sufficient to constitute a materially
adverse action, we do not find the conduct by lower level employees sufficient because of the
lack of demonstrated respondeat superior liability. Ms. Vandegrift argues the spreading of
rumors about her having sexual relations with her former lieutenant constitutes an adverse action.
The only evidence about how these rumors spread consists of Detective Robert Kerwin told Ms.
Vandegrift her “squad” told him “not to trust her because she was fucking the last out lieutenant
and that she backstabbed him by making a complaint against him.” 240 Without evidence of
whether supervisory-level employees in the squad spread these rumors, a reasonable jury could
not attribute the spreading of these rumors to the City without resorting to speculation.
Ms. Vandegrift does not argue the spreading of rumors by coworkers can be attributed to
the City under the doctrine of respondeat superior. Even if she did, this argument would fail. To
succeed on a claim of retaliatory harassment by coworkers, Ms. Vandegrift must show
management “knew or should have known about the harassment, but ‘failed to take prompt and
adequate remedial action.’”241 Captain Derbyshire testified he did not hear any rumors about
Ms. Vandegrift having a sexual relationship with a lieutenant. He only heard Ms. Vandegrift
“was upset and that she did not – it wasn’t working out. That the 2 Squad situation was not
working out. That was all I needed, and with that I went to my boss.” 242 Ms. Vandegrift did not
provide any evidence she told a management-level employee—prior to her transfer to the
Southwest Division—about the rumors of her engaging in a sexual relationship with a lieutenant.
Ms. Vandegrift failed to provide evidence management knew or should have known about the
rumors spread by her coworkers.
3. The City reassigned Ms. Vandegrift to another division.
Ms. Vandegrift’s transfer out of the South Detectives Division to the Southwest Division
constitutes a materially adverse action. She argues the Southwest Division is an extremely busy
and hectic place to work. As explained by the Supreme Court in Burlington, “Common sense
suggests that one good way to discourage an employee . . . from bringing discrimination charges
would be to insist that she spend more time performing the more arduous duties and less time
performing those that are easier or more agreeable.”243 In McKinnon v. Gonzales, the court
concluded a reasonable jury could find the plaintiff’s transfer to a unit the plaintiff described as
“out of control” constituted a materially adverse action.244 We similarly find Ms. Vandegrift’s
transfer to an extremely busy and hectic workplace could reasonably dissuade a reasonable
person in Ms. Vandegrift’s position from making a charge of discrimination.
4. The City charged Ms. Vandegrift with misconduct.
Ms. Vandegrift argues the City’s act of charging her with misconduct constitutes a
materially adverse action. The City counters the misconduct charge is not materially adverse
because Ms. Vandegrift’s conduct warranted discipline.
At least one district court in our Circuit has held an employer’s issuance of a disciplinary
charge constitutes an adverse action.245 We likewise find the City’s decision to charge Ms.
Vandegrift with misconduct constitutes an adverse employment action because a reasonable jury
could find a charge might dissuade a reasonable employee from making a charge of
We reject the City’s argument the misconduct charge is warranted and thus fails to
constitute a materially adverse action. Under the prevailing definition of materially adverse
action, such an action need not be unwarranted or unjustified. The action need only dissuade a
reasonable employee from making a charge of discrimination.
The City could have argued it had a “legitimate, nonretaliatory reason” for charging Ms.
Vandegrift with misconduct.246 The burden would then shift back to Ms. Vandegrift to prove the
City’s “proffered explanation was false, and that retaliation was the real reason for the adverse
employment action.”247 Instead of arguing the City has a legitimate, nonretaliatory reason for its
conduct, the City challenges the “adverse action” element of Ms. Vandegrift’s prima facie case,
arguing her misconduct charge cannot constitute an adverse action. At this stage, we do not
analyze whether conduct alleged to constitute an adverse action is justified. We merely review
whether the conduct might dissuade a reasonable employee from making a charge of
discrimination. The City’s charge of misconduct against Ms. Vandegrift—even if the City issued
it consistent with its policies—could dissuade a reasonable employee from making a charge of
The City may be liable for civil rights violations under Monell.248
The City argues Ms. Vandegrift fails to provide sufficient evidence for the jury to
conclude the City has a custom of sexual harassment which caused her to suffer a constitutional
tort. Ms. Vandegrift argues the City is liable under Monell because there is a well-settled custom
of sexual harassment in the City.
“When a suit against a municipality is based on § 1983, the municipality can only be
liable when the alleged constitutional transgression implements or executes a policy, regulation,
or decision officially adopted by the governing body or informally adopted by custom.” 249 In the
context of a sexual harassment claim, Ms. Vandegrift can establish municipal liability by
producing proof the sexual harassment alleged reflects a “practice” or “course of conduct”
among municipal officials which is “so permanent and well settled as to virtually constitute
Ms. Vandegrift must also show the custom “was the proximate cause of the injuries
suffered.”251 “As long as the causal link is not too tenuous, the question whether the municipal
policy or custom proximately caused the constitutional infringement should be left to the
Ms. Vandegrift must show a policymaker is responsible for the custom by
acquiescence.253 A custom which is “so permanent and well settled as to have the force of law
[is] ascribable to municipal decisionmakers.”254 In this case, the relevant policymaker is the
In Bohen v. City of East Chicago, the district court, following a bench trial, found
supervisory personnel in the City of East Chicago’s fire department engaged in “individual acts
of harassment” in the course of their duties.256 Management officials responsible for the working
conditions in the fire department knew the “general picture” of the pattern of sexual
harassment.257 “Complaints by victims of sexual harassment were addressed superficially if at
all, and the department had no policy against sexual harassment.”258 On appeal, the Court of
Appeals for the Seventh Circuit held this absence of action while knowing the “general picture”
constituted sufficient evidence of a custom of sexual harassment.259
Ms. Vandegrift provides sufficient evidence of a well-settled custom of sexual harassment
within the Philadelphia Police Department. Ms. Vandegrift’s coworkers and supervisors directed
sex-based conduct toward her and other female employees throughout her employment. The
conduct consisted of sexual advances, comments about women’s appearances, remarks about the
male employee’s desire to have sex with a female employee, rumors of sexual relationships,
exposure of genitals, and sexual assault. Ms. Vandegrift faced harassment in all of the divisions
she worked in at the Philadelphia Police Department up to her transfer to the Southwest Division,
and it persisted throughout her employment. Even Captain Derbyshire, a high ranking official,
testified he heard male members of the Police Department talk about having sex with women and
about women’s appearances or body parts.260 Chief Inspector Holmes testified female police
officers hear comments about sex while working in the Police Department.261
Lieutenant Saggese, a sixteen year investigator in the police’s internal affairs division,
told Ms. Vandegrift certain employees have “carte blanche” to act the way they do, and he had
“run into a brick wall” regarding other investigations.262 He also told Ms. Vandegrift other
sexual allegations against “higher-ups” are swept under the rug.263 This statement demonstrates
high level officials knew and ignored complaints of sexual harassment against high level
Consistent with Lieutenant Saggese’s statement, Chief Inspector Holmes twice faced
charges of sexual assaulting a female police officer and both times the investigators did not find
sufficient evidence to sustain the allegations. As to Officer Hayburn’s accusation of sexual
assault against Chief Inspector Holmes, the investigation resulted in a finding of “not sustained”
even though Officer Hayburn had two witnesses who corroborated her account of the events and
the City discovered Chief Inspector Holmes’ semen in his city-issued vehicle.264
As to Ms. Vandegrift’s accusation of sexual assault, Lieutenant Saggese recommended
Ms. Vandegrift’s sexual assault complaint be sent to the District Attorney’s office for review, but
Chief Inspector Flacco declined to do so.265 The City only found one male employee violated
the City’s EEO policy, but there is no indication the City disciplined the employee.
Ms. Vandegrift has provided sufficient evidence for a reasonable jury to conclude the
City knew of its specific problems with sexual assault and harassment in the police department,
at least as to those male superiors and officers in contact with Ms. Vandegrift, but did little or
nothing to stop such conduct. A reasonable jury could conclude the Police Commissioner
acquiesced in a custom of sexual harassment within the Philadelphia Police Department by not
addressing this conduct.
Ms. Vandegrift would agree, and we do not doubt, the vast majority of superior officers
avoid any appearance of impropriety, work to improve their valued public service and build
internal morale. But as part of evolving police progress, the police department must not turn a
blind, or at least severely impaired, eye to specific complaints of sexual assault and harassment
by identified officers upon the policewomen proudly serving our community.
Ms. Vandegrift adduces facts necessary to create a genuine issue of material fact as to her
claims of gender discrimination, hostile work environment, and retaliation under Title VII, the
PHRA, and the Philadelphia Fair Practices Ordinance. Ms. Vandegrift also provides sufficient
evidence of a well-settled custom of sexual harassment within the Philadelphia Police
Department. In the accompanying order, we deny the City’s Motion for summary judgment.
We consider the “underlying facts and all reasonable inferences therefrom in the light most
favorable to” Ms. Vandegrift, “the party opposing the motion.” Slagle v. Cnty. of Clarion, 435
F.3d 262, 264 (3d Cir. 2006) (citations omitted). Our Policies require a Statement of Undisputed
Material Facts be filed in support of a Rule 56 motion, as well as an appendix of exhibits. The
City filed its Statement of Undisputed Material Facts at ECF Doc. No. 32. The City filed an
appendix at ECF Doc. Nos. 31-1 through 31-13. Ms. Vandegrift responded to the City’s
Statement of Undisputed Material Facts at ECF Doc. No. 36-2. Ms. Vandegrift added documents
to the Appendix at ECF Doc. Nos. 36-5 through 36-15. References to the exhibits in the
appendices shall be referred to by bates number, for example, “Appx. 1.”
ECF Doc. No. 31-1, at p. 7.
ECF Doc. No. 31-1, at p. 17.
Appx. 976; Appx. 494.
Appx. 976; Appx. 496.
Appx. 522. In the 24th District, these male employees included: Officer Timothy Coleman;
Officer George Mullen; Officer Norman Camacho; Officer Vic Rosa; Officer Chris Godfrey;
Officer Michael Edinger; Officer Frank Carrelli; Officer Terrance O’Hanlon; Officer Robert
Kennedy; Officer Timothy Kocher; Officer Eric Pross; Officer Frank Kober; Officer McLoud;
Sergeant Alfred Corson; and Sergeant Michael Gorman. In the 9th District, the male employees
included: Officer Michael Givens; Officer Chris Simone; Officer Leroy Geiger; Officer George
Gaspar; Sergeant Thomas Tamulis; Sergeant John Wood; Sergeant Paul DeCarlo; Sergeant
James DeAngelo; Lieutenant Anthony LaSalle; Officer Pat Gallagher. In the South Detectives
Division, these employees included: Detective John Ruth; Detective Kevin Conway; Detective
Neal Aitken; Detective Wayne Hunter; Detective Joe Dydak; Detective Mike McKenna;
Detective Miguel Figueroa; Detective Timothy Quinn; Detective Martin Conners; Sergeant
Christopher Morton; Sergeant Maurice Hampton; and Sergeant Maurice Black.
Id. “Roadhead” refers to a woman giving a man oral sex while he is driving. Id.
Appx. 436, 476. Ms. Vandegrift responded, “Guess I didn’t do it good enough. Still haven’t
landed my M through f weekends off gig.” Appx. 476. Detective Aiken responded, “It’s not all
it’s cracked up to be. (Does that mean I did him?)”, to which Ms. Vandegrift said, “No it means u
blew him lol.” Appx. 1111–1113.
Appx. 214. There are four squads in the South Detectives Division.
ECF Doc. No. 35-2, at p. 3. In today’s separate Memorandum, we limit Mr. Torchia’s
opinions to nonlegal matters not based on setting a legal standard and then claiming the City
violated the legal standard.
ECF Doc. No. 8, ¶ 52; Appx. 822.
ECF Doc. No. 8, ¶ 52; Appx. 822.
Appx. 555, 1130.
42 U.S.C. § 2000e et seq.
43 Pa. C.S.A. § 951 et seq.
Phila. Code. § 9-1101 et seq.
Summary judgment is proper when there is no genuine dispute of material fact and the movant
is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute as to a material fact is
genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary
judgment, the court must consider the “underlying facts and all reasonable inferences therefrom
in the light most favorable to the party opposing the motion.” Slagle v. Cnty. of Clarion, 435 F.3d
262, 264 (3d Cir. 2006) (citations omitted). If the movant carries its initial burden of showing the
basis of its motion, the burden shifts to the non-moving party to go beyond the pleadings and
point to “specific facts showing that a genuine issue exists for trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 323–24 (1986). In other words, the non-moving party “must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue.”
Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (citation and internal quotation
marks omitted). Summary judgment must be granted against a non-moving party who fails to
sufficiently “establish the existence of an essential element of its case on which it bears the
burden of proof at trial.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
The City also moved for summary judgment on the grounds Ms. Vandegrift could not show a
prima facie case of sex discrimination or wage discrimination under Title VII, the PHRA, or the
Philadelphia Ordinance. Ms. Vandegift, however, clarified during the September 8, 2016 Rule
16 conference the only sex discrimination claims she is pursuing under these statutes are for a
sex-based hostile work environment, and in her response she does not defend any other sex
discrimination theory under these statutes. We accordingly analyze Ms. Vandegrift’s sex
discrimination claims under Title VII, the PHRA, or the Philadelphia Ordinance for whether they
satisfy the requirements under the hostile work environment theory.
43 P.S. § 962.1(d).
Philadelphia Home Rule Charter, 351 Pa. Code §§ 3.3-100(e), 4.4-700, 4.4-701.
Phila. Code § 9-1103(1).
Id. § 9-1112(1).
Id. § 9-1112(3). This provision provides “No complaint shall be considered unless it is filed
with the Commission within three hundred (300) days after the occurrence of the alleged
unlawful practice.” Id.
Id. § 9-1112(4).
Id. § 9-1122(1).
Id. § 9-1122)(4).
Ives v. NHS Human Servs., Inc., No. 15-5317, 2016 WL 4039644, at *3 (E.D. Pa. July 28,
Id. at *4.
Ahern v. Eresearch Tech., Inc., 2016 WL 4501648, at *2–3 (E.D. Pa. Apr. 29, 2016).
City of Philadelphia v. City of Philadelphia Tax Review Bd. ex rel. Keystone Health Plan E.,
Inc., 132 A.3d 946, 952 (Pa. 2015) (citing Bailey v. Zoning Bd. of Adjustment, 801 A.2d 492, 502
n.19 (Pa. 2002)).
Id. (citing 1 Pa. C.S. § 1921(b)).
Id. (citing Warrantech Consumer Prods. Servs., Inc. v. Reliance Ins. Co., 96 A.3d 346, 354–55
Id. (citing Warrantech Consumer Prods. Servs., Inc., 96 A.3d at 354–55).
1 Pa. C.S. § 1921(c)(3), (4), (6).
Phila. Code § 9-1122(1).
Id. § 9-1122(4).
Id. § 9-1101(1)(b).
Id. § 9-1101(1)(e).
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 164 (3d Cir. 2013) (quoting 43 Pa. Stat. §
Id. at 165 (quoting 42 U.S.C. § 2000e–5(e)(1)).
Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting West v. Philadelphia Elec.
Co., 45 F.3d 744, 754 (3d Cir. 1995).
Id. at 165 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)) (brackets
Id. (quoting Nat’l R.R. Passenger Corp., 536 U.S. at 114).
O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006).
Nat’l R.R. Passenger Corp., 536 U.S. at 117 (quoting 42 U.S.C. § 2000e–5(e)(1)).
Mandel, 706 F.3d at 165.
Id. (quoting O’Connor, 440 F.3d at 127).
Mandel, 706 F.3d at 165–66.
Id. at 166.
Id. at 166 n.2.
Compare Illas v. Gloucester Cty. Sheriff’s Dep’t, No. 14-4061, 2015 WL 778806, at *5 (D.N.J.
Feb. 24, 2015) (sexual assault a discrete act because it is individually actionable), and Onuffer v.
Walker, No. 13-4208, 2014 WL 3408563, at *6 (E.D. Pa. July 14, 2014) (same), with Hague v.
Alex E. Paris Contracting Co., Inc., No. 14-655, 2016 WL 5468118, at *5 (W.D. Pa. Sept. 29,
2016) (rape not a discrete act because it constituted “merely the first unlawful employment
practice” and “all subsequent events stemmed from it”).
See Illas, 2015 WL 778806, at *5; Onuffer, 2014 WL 3408563, at *6.
Sager v. Harvey, No. 06-3089, 2007 WL 984163, at *8 (D. Minn. Mar. 30, 2007).
Hague, 2016 WL 5468118, at *5.
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986).
Id. at 60.
Id. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
Nat’l R.R. Passenger Corp., 536 U.S. at 114.
Meritor Sav. Bank, FSB, 477 U.S. at 67 (quoting Henson, 682 F.2d at 904).
Nat’l R.R. Passenger Corp., 536 U.S. at 117 (quoting 42 U.S.C. § 2000e–5(e)(1)).
Mandel, 706 F.3d at 165–66.
“[T]he PHRA is to be interpreted as identical to federal antidiscrimination laws except where
there is something specifically different in its language requiring that it be treated differently.”
Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 327 (3d Cir. 2015) (quoting Fogleman v. Mercy
Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)). Similarly, claims under the Philadelphia Fair
Practices Ordinance are analyzed under the same framework as Title VII and PHRA claims.
Childers v. Trustees of the Univ. of Pennsylvania, No. 14-2439, 2016 WL 1086669, at *6 n.4
(E.D. Pa. Mar. 21, 2016). Ms. Vandegrift does not point to specific language requiring different
Mandel, 706 F.3d at 167 (citing Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006)).
Id. at 168 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), overruled on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)).
Mandel, 706 F.3d at 168 (quoting Caver, 420 F.3d at 262–63).
Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990).
Brooks v. City of Philadelphia, No. 14-623, 2015 WL 505405, at *1, *6 (E.D. Pa. Feb. 6,
Id. at *1.
Id. at *6.
Jensen, 435 F.3d at 452 (quoting Burlington Indus., Inc., 524 U.S. at 765).
Pennsylvania State Police v. Suders, 542 U.S. 129, 145–46 (2004) (quoting Burlington Indus.,
Inc., 524 U.S. at 765).
Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citing
Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001)).
Id. at 104–105.
Kidd v. Pennsylvania, No. 97-5577, 1999 WL 391496, at *7 (E.D. Pa. May 20, 1999).
ECF Doc. No. 35-2, at p. 3.
Jones, 796 F.3d at 329 (quoting E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir.
Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015) (citing Marra v. Phila.
Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)).
Id. (citing Marra, 497 F.3d at 300).
Id. at 195 (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68).
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69.
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69.
Van Dyke v. Partners of Debevoise & Plimpton LLP, No. 12-8354, 2013 WL 5375542, at *10
(S.D.N.Y. Sept. 24, 2013).
Brooks v. City of San Mateo, 229 F.3d 917, 928–29 (9th Cir. 2000).
Id. at 929.
Daniels, 776 F.3d at 195 (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68).
Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).
Jensen, 435 F.3d at 453 (quoting Andrews, 895 F.2d at 1486).
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 70–71.
McKinnon v. Gonzales, 642 F. Supp. 2d 410, 427 (D.N.J. 2009).
See Giel v. Feasterville Fire Co., No. 07-1186, 2008 WL 2812972, at *3 (E.D. Pa. July 21,
Daniels, 776 F.3d at 193 (citing Marra, 497 F.3d at 300).
Id. (citing Marra, 497 F.3d at 300).
Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978).
Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996) (citing Monell, 436 U.S. 658).
Hargrave v. Cty. of Atl., 262 F. Supp. 2d 393, 443 (D.N.J. 2003) (quoting Andrews, 895 F.2d at
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
Id. at 851.
Andrews, 895 F.2d at 1480.
Bielevicz, 915 F.2d at 850.
Andrews, 895 F.2d at 1481.
Bohen v. City of E. Chicago, Ind., 799 F.2d 1180, 1189 (7th Cir. 1986).
ECF Doc. No. 8, ¶ 52; Appx. 822.
ECF Doc. No. 8, ¶ 52; Appx. 822.
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