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Perez v. Town of North Providence

United States District Court, D. Rhode Island

June 22, 2017

DIANA PEREZ Plaintiff,
THE TOWN OF NORTH PROVIDENCE, and CHARLES LOMBARDI, individually and in his official capacity as Director of Public Safety, for the Town of Providence. Defendants.


          JOHN J. MCCONNELL, JR., United States District Judge.

         Plaintiff Diana Perez, a lieutenant in the North Providence Police Department ("NPPD"), has sued the Town of North Providence and Charles Lombardi, the Mayor and Public Safety Director (collectively "the Town"), alleging a hostile work environment, in violation of 42 U.S.C. § 2OOOe-2(a)(1), and retaliation, in violation of 42 U.S.C. § 2OOOe-3(a). ECF No. 1 at ¶¶ 1, 88-93. The Town moves to dismiss Lt. Perez's Complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 8. Because the Court finds that Lt. Perez has set forth sufficient plausible allegations to establish legal claims for a hostile work environment resulting in gender discrimination and retaliation by the Town, the Town's Motion to Dismiss is DENIED.


         Lt. Perez has been employed by the NPPD since March of 2004. ECF No. 14-2 at ¶ 8. As a lieutenant, she is the highest-ranking female police officer ever employed by the Town of North Providence. Id. at ¶ 9.

         Beginning in 2012, Lt. Perez began to experience a series of gender-based comments and actions directed towards her and other females. Id. at ¶ 14. She delineates this-a series of "inappropriate, discriminatory and vulgar comments made by supervising officers, " id. at ¶ 12-in her Amended Complaint. After she complained of these discriminatory acts, she suffered a series of retaliatory acts. The litany of gendei"based, demeaning, and sexist comments and actions, as well as the retaliation for complaining of the sexual harassment, as alleged by Lt. Perez is set forth below.

         From 2012 to 2014, the Director of the Rhode Island Municipal Academy chose Lt. Perez to teach classes at the Academy. Id. at ¶ 14. In response, NPPD Acting Chief Christopher Pelagio, Lt. Perez's supervisor, falsely claimed that she obtained the position because the Director wanted a sexual relationship with her. Id. Similarly, Chief Pelagio taunted Lt. Perez, declaring that a bail commissioner quickly returned her calls because he wanted Lt. Perez in a sexual manner. Id. at ¶¶ 17-19.

         Chief Pelagio was not the only member of the NPPD to engage in crude behavior. A captain in the NPPD sent Lt. Perez a text message that referenced male genitalia. Id. at ¶ 26. And at another point in time, Lt. Perez, while in a meeting with a male lieutenant, excused herself to use the restroom. In response, the lieutenant, retorted, "[M]ake sure you wipe from front to back." Id. at ¶ 33.

         In addition to the comments directed towards Lt. Perez, Chief Pelagio and Acting Deputy Chief Charles Davey, along with other members of the NPPD, made gender-based comments directed towards other women. For instance, Chief Pelagio frequently referred to a female dispatcher as a "penguin" because of the dispatcher's weight, id. at ¶¶ 22, 24, and Deputy Chief Davey referred to the same dispatcher as a "walrus, " id. at ¶¶ 23, 25. On one occasion, Chief Pelagio referred to a female animal control officer as a "cunt, " id. at ¶ 27, and on another occasion, he referred to a female member of the North Providence Town Council as a "cunt, " id. at ¶ 28.

         Chief Pelagio was not the only NPPD member to employ the boorish parts of our lexicon. Supervisors in the NPPD-in the presence of Lt. Perez-routinely characterized a female dispatcher as a "slut bitch, and whore." Id. at ¶ 32. The supervisor of a female detective in the NPPD criticized the detective's weight in the presence of Lt. Perez. Id. at ¶ 30. Also in Lt. Perez's presence, supervising officers commented that a female sergeant in the NPPD should not be a police officer because she has "family responsibilities." Id. at ¶ 31.

         In February of 2016, Lt. Perez, Chief Pelagio, Deputy Chief Davey, and a lieutenant interviewed a female recruit for the NPPD. Id. at ¶ 34. Lt, Perez voiced legitimate criticism concerning the recruit, and in response, Chief Pelagio quipped, "Tell me the truth, you don't want any competition, do you?" Id. at ¶ 35. Shortly after, Deputy Chief Davey and the lieutenant began joking about the attractiveness of the female recruit. Id., at ¶ 36. Later that day, Chief Pelagio and another lieutenant continued to comment on the attractiveness of the female recruit, and the lieutenant, while "holding his hands in a manner to suggest sexual intercourse, " remarked that "the candidate could 'sit on . . . [the lieutenant's] lap' during the interview." Id. at ¶ 38 (alteration in original). Additionally, during these lewd conversations, Chief Pelagio referred to Lt. Perez's body "by drawing with his hands an hourglass-shaped outline." Id. at ¶ 39.

         The following month, Chief Pelagio "made an unsolicited, rude, and abusive comment" to Lt. Perez in the presence Deputy Chief Davey. Id. at ¶ 42. Deputy Chief Davey, in response, interjected, "Time out, I don't want to be a witness." Id. at ¶ 44.

         Because of her regular exposure to sexist behavior and remarks in her work place, Lt. Perez met with Mayor Lombardi and detailed her allegations against Chief Pelagio and Deputy Chief Davey. Id. at ¶¶ 48-49. Prior to that, Mayor Lombardi had learned of the "unsolicited, rude and abusive comment" made by Chief Pelagio and later pledged to take action. Id. at ¶¶ 46, 49. Nevertheless, despite this pledge of action, Mayor Lombardi has sat idle. Id. at ¶ 49. Instead, what followed was a bevy of retaliatory acts by the Town that Lt. Perez levied in her Amended Complaint.

         Subsequent to Chief Pelagio hearing that Lt. Perez made a written complaint to Mayor Lombardi, Chief Pelagio informed Lt. Perez that he "no longer can trust her" and that she "is no longer part of his 'inner circle.'" Id. at ¶ 51. Also, in close temporal proximity to Lt. Perez complaining of harassment, Deputy Chief Davey placed a toy rat in an unmarked police car. Id. at ¶ 52-55.

         As a result of the harassment, Lt. Perez developed disabling high blood pressure, which forced her to take leave. Id. at ¶ 72. Lt. Perez has followed all of the NPPD's procedures and her physician concluded that the injury resulted from Lt, Perez's employment, yet the NPPD chose to contest the injury. Id. at ¶¶ 57-58. To add insult to injury, the NPPD placed Deputy Chief Davey, an alleged harasser, in charge of investigating her injury. Id. at ¶ 59. In addition, the NPPD cut off Lt. Perez's access to her email and refused to turn over a physician's examination report of Lt. Perez, in contravention to the collective bargaining agreement. Id. at ¶¶ 71, 76-77.

         After Lt. Perez filed her original Complaint, Mayor Lombard! met with a captain in the NPPD and joked that they "should go into a business together, a 'wiping business.'" Id. at ¶ 91. Mayor Lombardi then went on a local radio show and criticized Lt. Perez for disclosing the allegations in a memorandum, implied that the allegations were untruthful, and suggested that Lt. Perez made the allegations at the labor union's behest. Id. at ¶¶ 95-96. Also, around this time, a lieutenant confronted Lt. Perez and called her a liar. Id. at ¶ 98.


         In response to Lt. Perez filing the original Complaint, the Town moved to dismiss pursuant to Fed. R. Civ, P. 12(b)(6). ECF No. 8. The Town's Motion sets forth three grounds for dismissal: (i) the actions against Mayor Lombardi cannot be maintained because Title VII does not impose individual liability upon employees! (2) Lt. Perez, as a matter of law, fails to set forth a hostile work environment claim! and (3) Lt. Perez's Complaint lacks sufficient factual allegations to support a claim for retaliation. Id. at 4-31.

         Additionally, after the Town filed their Motion to Dismiss, Lt. Perez moved to amend her original Complaint, adding three allegations of retaliation that occurred after she filed the instant Complaint. ECF No. 14, The Town opposes the Motion to Amend. ECF No. 17. In opposing this Motion, it argues that Lt. Perez failed: (1) to exhaust her administrative remedies for the new allegations, (2) to comply with Rhode Island's notice-of-claims statute, and (3) to establish a plausible claim of retaliation. Id.


         I. Motion to Amend

         A party may move to supplement her pleadings to include events that transpired after the pleadings were filed. Fed.R.Civ.P. 15(d). And a court may, "on just terms, " permit this supplementation. Id.

As written, Rule 15(d) contains no standards at all to guide the district court's analysis! it merely authorizes the district court to permit service of a supplemental pleading "on just terms." In an effort to fill this vacuum and in keeping with the overarching flexibility of Rule 15, courts customarily have treated requests to supplement under Rule 15(d) liberally.

U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7 (1st Cir. 2015). A court may deny a request for supplementation if the motion to supplement references "events [that] occurred before the filing of the original complaint" or "would 'unduly delay the resolution of the case.'" Id. (first citing Eid v. Alaska Airlines, Inc., 621 F.3d 858, 874-75 (9th Cir. 2010); and then quoting Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir. 2006)). "In the last analysis, a district court faced with a Rule 15(d) motion must weigh the totality of the circumstances, just as it would under Rule 15(a)." Id.

         II. Motion to Dismiss

         To survive a motion to dismiss, a plaintiffs complaint need not establish a prima facie case. Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 108 (1st Cir. 2014). However, the complaint must set forth a plausible claim for relief. Flock v. United States Dep't of Transportation, 840 F.3d 49, 54 (1st Cir. 2016). And "the elements of a prima facie case are relevant to the plausibility assessment, forming 'part of the background against which a plausibility determination should be made.'" Medina-Velazquez, 767 F.3d at 108 (quoting Rodriguez-Reyes, v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Coll. Hill Props., LLC v. City of Worcester, 821 F.3d 193, 195-96 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         The plausibility determination is a two-step process. First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Medina-Velazquez, 767 F.3d at 108 (quoting A.G. exrel. Maddox v. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)). Second, the Court "must determine whether the remaining factual content allows a reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting AG. Ex rel. Maddox, 732 F.3d at 80).


         I. Motion to Amend

         The Court begins with Lt. Perez's Motion to Amend/Correct Plaintiffs Complaint, wherein she sets forth three additional factual allegations that occurred after she filed her original Complaint. ECF Nos. 14 and 14-1. The Town objected to the proposed amended pleading, arguing that Lt. Perez has not exhausted her administrative remedies, complied with Rhode Island's notice-of-claims statute, or alleged a plausible claim of retaliation. ECF No. 17 at 4.

         A. Failure to Exhaust Administrative Remedies

         In challenging Lt. Perez's Motion to Amend, the Town argues that, because the new retaliatory acts occurred after she filed her charge with the Rhode Island Commission for Human Rights ("RICHR"), Lt. Perez did not exhaust ...

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