United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., United States District Judge.
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.
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.
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.
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
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
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.
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 ¶
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.
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.
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.
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
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.
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.
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.
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.
Motion to Amend
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
Motion to Dismiss
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)).
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).
Motion to Amend
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.
Failure to Exhaust Administrative Remedies
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 ...