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Gross v. Akill

United States District Court, Third Circuit

October 30, 2013

TAMIKA GROSS, Plaintiff,
v.
NASHID AKILL, et al., Defendants.

OPINION

JOEL H. SLOMSKY, J.

I. INTRODUCTION

Before the Court is a Motion to Dismiss filed by Sergeant Nashid Akill and the City of Philadelphia (“Defendants”).[1] (Doc. No. 5.) The Motion to Dismiss seeks dismissal of the Complaint filed on June 17, 2013 by Tamika Gross (“Plaintiff”) against Defendants alleging sex discrimination, hostile work environment, and retaliation, in violation of 42 U.S.C. § 2000e (“Title VII”) and the Pennsylvania Human Relations Act (the “PHRA”) 43 P.S. §§ 951-963. In the Complaint, Plaintiff also brings a supplemental state law claim for assault and battery committed by individual Defendant Akill.[2]

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek to dismiss Counts II and III of the Complaint, which encompass the Title VII and PHRA claims. (Doc. No. 5 at 3.) For reasons that follow, Defendants’ Motion to Dismiss will be denied.

II. BACKGROUND

On June 17, 2007, the Philadelphia Police Department hired Plaintiff as a police officer and assigned her to the 16th District in Squad 2A, where Defendant Akill was one of her supervisors. (Doc. No. 1 at ¶ 10.) For a little over a year, from August 2011 until September 2012, Defendant Akill made inappropriate sexual comments to Plaintiff. Specifically, Defendant Akill asked Plaintiff out on dates, implied he wanted to have a romantic/sexual relationship with her, and repeatedly referred to her as “my baby” and “my boo.” (Id. at ¶ 11.) Defendant Akill also made comments such as “don’t fight it, ” “it’s going to happen, ” “we are both adults and whatever happens stays between us, ” and “being faithful is played out.” (Id.)

Plaintiff’s partner, Police Officer Jeanette Meizinger (“Meizinger”), overheard these comments and witnessed Defendant Akill put his hands on Plaintiff on August 23, 2011 when he arrived at the scene of an incident that Plaintiff and Meizinger were responding to. (Id. at ¶¶ 11-12.) Defendant Akill grabbed Plaintiff by the wrists and asked her when they were going to go out on a date. (Id. at ¶ 12.) At that time, Meizinger remarked that Defendant Akill was “taking this too far” and threatened to use her taser against him if he did not remove his hands from Plaintiff. (Id.)

In September 2011, Meizinger, along with two other officers, witnessed another instance of Defendant Akill putting his hands on Plaintiff at work. This time, Defendant Akill grabbed the collar of Plaintiff’s uniform while stating, “yeah get mad, get mad.” (Id. at ¶ 13.) Later that month, Defendant Akill approached Plaintiff and told her that he wanted to “see x-rated pictures” of her. (Id. at ¶ 14.) He then threatened Plaintiff by stating to her that when police officers give him a hard time, he assigns them to unfavorable assignments like “foot beats” or issues counseling memos. (Id.)

Inappropriate comments from Defendant Akill such as “there comes my baby” and “there comes my boo” continued through December 2011. (Id. at ¶ 16.) At that time, Defendant Akill called Plaintiff into his office and asked her about her personal relationship with Police Officer Kenyatta Brandon. (Id. at ¶ 17.) According to Plaintiff, the conversation was inappropriate and not work-related. (Id.) The following month, in January 2012, Defendant Akill arrived on the scene of a car stop where Plaintiff was on duty. (Id. at ¶ 18.) After the stop, Defendant Akill followed Plaintiff back to her car and held the door open. (Id.) When Plaintiff asked him to let go of the door, Defendant Akill said, “you being mean to me doesn’t do anything.” (Id.) He eventually let go of the door when he noticed that Plaintiff was on the phone. (Id.)

In March 2012, Plaintiff and her partner Meizinger were reassigned from 2-Squad to 1-Squad, based on Defendant Akill’s recommendation. (Id. at ¶ 19.) This reassignment lasted one month, and both Plaintiff and her partner were transferred back to 2-Squad in April 2012. (Id. at ¶ 21.) Also in March 2012, Plaintiff complained to the Fraternal Order of Police (“FOP”) and Captain Pasquale Agozzino (“Captain Agozzino”) about Defendant Akill’s “sexual advances, harassing and inappropriate comments, and that she felt [Defendant] Akill was treating her differently because of her sex and because she rejected his advances.” (Id. at ¶ 20.) At that time, Captain Agozzino gave Plaintiff permission to break the chain of command if she did not feel comfortable talking to Defendant Akill about future issues such as attendance, sick days, assignments, or any other work-related issues. (Id.)

From April 2012 through September 2012, Defendant Akill continued to make inappropriate comments to Plaintiff, referring to her as “my baby” and “my boo” every time he saw her. (Id. at ¶ 22.) He also made these comments in front of other officers and supervisors. (Id.) Plaintiff repeatedly told Defendant Akill to stop. (Id.) According to Plaintiff, these comments affected her ability to do her job and created a hostile work environment. (Id. at ¶ 23.) Defendant Akill’s comments were made in front of both officers and civilians, and Plaintiff alleges that they affected her ability to work by creating animosity and a lack of confidence in the Police Department. (Id.) If Plaintiff responded negatively to the comments, Defendant Akill would remark, “oh she’s in another one of her moods.” (Id.)

In August 2012, Plaintiff notified her direct supervisor, Sergeant Snyder, that she would be late to work one day. (Id. at ¶ 24.) Sergeant Snyder approved this absence, but when Plaintiff came in late, Defendant Akill listed her as absent without leave (“AWOL”) for five-and-a-half hours. (Id.) Defendant Akill also threatened to issue Plaintiff a counseling memo. (Id.) Upon learning that Plaintiff had reported late with Sergeant Snyder’s permission, Captain Agozzino credited Plaintiff with the lost time and pay. (Id.)

In September 2012, Plaintiff again complained to Captain Agozzino about Defendant Akill. At that time, Agozzino had Plaintiff file a formal complaint with the Internal Affairs Division (“IAD”). (Id. at ¶ 25.) Plaintiff does not know the results of the IAD investigation, but later that month, Defendant Akill was transferred from the 16th District to the 19th District. (Id. at ¶¶ 25-26.) Plaintiff’s assignment did not change, and she remained in the 16th District. (Id. at ¶ 26.) On September 17, 2012, Plaintiff also filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination and retaliation against Defendants Akill and the City. (Id. at ¶ 27.)

On March 5, 2013, while Plaintiff was not at work because she was on Injured-on-Duty (“IOD”) status for a November 2012 injury, a formal disciplinary action was instituted against her by IAD for “Conduct Unbecoming.”[3] (Id. at ¶ 29.) The disciplinary action was commenced as a result of Plaintiff’s alleged involvement in disputes with a neighbor, Katrina Bland, Katrina’s son Lamont Young, and other juveniles in Plaintiff’s neighborhood. (Id.) After an investigation of the incident, the IAD allegations were “Not Sustained.” (Id. at ¶ 30.)

On June 17, 2013, Plaintiff filed the Complaint alleging claims of sex discrimination, hostile work environment and retaliation against the Defendant City, in violation of Title VII. She also brought the same claims against both Defendant Akill and the City under the PHRA, along with a state law claim for assault and battery against individual Defendant Akill. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek to ...


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