Transcript
Case 2:13-cv-00075-SPC-UAM Document 17 Filed 06/28/13 Page 1 of 23 PageID 124
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AUDENIA NICOLE THOMAS,
CASE NO.: 2:13-cv-75-FtM-99SPC
Plaintiff,
vs.
THE CITY OF FORT MYERS POLICE
DEPARTMENT, AN AGENCY OF THE
CITY OF FORT MYERS,
Defendant.
______________________________/
FIRST AMENDED COMPLAINT FOR DISCRIMINATION
COMES NOW, Plaintiff, Audenia Nicole Thomas, (hereinafter “Thomas”) and sues
Defendant, The City of Fort Myers Police Department, an agency of the City of Fort Myers,
(hereinafter “Police Department” or “FMPD”) and alleges as follows:
Jurisdictional and Venue
1.
This is an action brought to remedy a continuing practice of discrimination on
the basis of race and gender, as well as retaliatory discrimination, and the terms,
conditions, and privileges of employment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e, et. seq. as amended by the Civil Rights Act of 1991 and Article
XIV §1 of the Constitution of the United States (equal protection and due process clause).
2.
Jurisdiction is founded on 42 U.S.C. §§2000e-5(f)(3) and 28 U.S.C. §§1331
and 1343(a)(4).
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3.
Venue is proper in this District pursuant to U.S.C. §1391, as Defendant
resides within the District, and all of the events giving rise to this claim occurred within this
District (i.e. within Lee County, Florida).
4.
Plaintiff, Thomas, also brings this action to remedy Defendant’s continuing
retaliation against her for opposing and challenging the pervasive discriminatory
employment practices by Defendant against African American female officers, and said
retaliation also being in violation of Title VII, supra.
Parties
5.
Plaintiff, Thomas, is an African American female, a state-certified, law
enforcement officer; and is both a citizen of the United States, and a resident of Lee
County, Florida. At all times material, Plaintiff, Thomas, is sui juris.
6.
Defendant, City of Fort Myers Police Department, is a political subdivision of
the State of Florida; and is an employer subject to Title VII having in its employ, fifteen (15)
or more employees for twenty (20) or more weeks during the years 2006 through and
inclusive of 2013.
Conditions Precedent
7.
Plaintiff, Thomas, has exhausted the required Administrative Procedures and
remedies of the Equal Employment Opportunity Commission (EEOC1) and has received
a “Right to Sue Letter” from the U.S. Department of Justice, Civil Rights Division, which is
attached hereto as Exhibit “B”.
1
For purposes of com pleteness, Plaintiff has attached as Exhibit “A” an April 30 th, 2012 letter
from the EEOC District Director, Miam i District Office, referring the m atter to the Departm ent of Justice, and
stating: “If DOJ does not bring a lawsuit they will notify you and issue a Notice of Right to Sue, which will entitle
you to sue the Respondent under the Statute cited”.
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8.
This action is filed within the “Ninety (90) Day Period” from the date on which
Plaintiff, Thomas, received the “Right to Sue Letter”, (i.e. November 13th, 2012) as required
by law and within four (4) years of the last act that forms the basis of Defendant’s
discriminatory practices on the basis of race, gender and retaliation in violation of Title VII.
Factual Allegations Common to All Counts
9.
On or about December 18th, 1997, Plaintiff, Thomas, was hired by the City
of Fort Myers, to serve as a “Community Service Aide” for the Fort Myers Police
Department. Plaintiff remained in this position for approximately eight (8) months.
10.
On or about October 1998, Plaintiff entered the Police Academy in order to
become a Certified Law Enforcement Officer. Plaintiff, Thomas, successfully completed
the Police Academy, and in June, 1999, began serving as a Patrol Officer for the Fort
Myers Police Department (hereinafter “FMPD”).
11.
From 1999, up through April 2004, Plaintiff remained a Patrol Officer with the
FMPD. However, on or about May 7, 2004 Plaintiff, Thomas, was promoted to the
Detective Division, and was assigned to the Property-Crimes Unit (i.e. burglary, grand theft,
forgeries - felony level investigations).
12.
Plaintiff, Thomas, remained in the Detective Division - Property Crimes Unit
through May 2007.
13.
Shortly after Plaintiff was promoted into the Detective Division, the FMPD
began to apply their race and gender based discriminatory policies against Detective
Thomas, although initially she did not grasp the magnitude of it.
14.
For example as part of their discriminatory policy the following events
occurred, to wit:
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(a)
Plaintiff was told part of the standard program
upon becoming a detective involved participation
in the “Detective Field Training Program”. During
said training, Plaintiff was assigned to work with
other senior Detectives, and underwent weekly
performance evaluations.
Plaintiff’s early
performance evaluations were positive.
(b)
Plaintiff was then assigned to Supervisory
Detective William Musante (Caucasian male) to
continue her “Field Training”. Shortly thereafter,
Musante began submitting evaluations claiming
Plaintiff poorly performed her tasks and
assignments.
(c)
The evaluations prepared by Detective Musante
were fabricated and embellished to create an
illusion that Plaintiff was not competent to
perform the requisite duties of her job.
(d)
During the night shift, the same supervising
Detective Musante, would harass Plaintiff,
without provocation, and for no justifiable
reason.
(e)
Detective Musante repeatedly threatened
Plaintiff, that he was going to perform a “desk
inspection” , or he would approach Plaintiff’s
desk, grab her purse and proceed to open it.
Plaintiff was initially stunned when Musante first
grabbed Plaintiff’s purse, and opened it. Such
an invasion of privacy, by her acting Supervisor
was demeaning; and there existed no written
authority or City based protocols to authorize
such an action.
(f)
The harassment continued. Detective Musante,
would repeatedly approach Plaintiff’s desk and
exclaim, for all other personnel to hear, “are you
ready to quit yet”; and he would then walk away,
laughing out loud.
(g)
Despite his racist and gross conduct, the
Department soon promoted Detective Musante
to Sergeant, and briefly transferred him to the
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Patrol Division.
(h)
15.
Several months later, however, toward the end
of 2007, Sergeant Musante was transferred back
to the Detective Division, and, “lo and behold”,
was specifically chosen by the Department to be
Plaintiff’s immediate Supervisor.
Plaintiff soon learned that the Field Training Program she had been required
to participate in, had never existed before she became a Detective; and in fact, upon
her completion of the program, it ceased to exist. No Caucasian Officer in the history of
the FMPD, ever had to undertake such a program, upon being promoted to Detective; and
nowhere in the Policy and Procedure Manuals throughout the Fort Myers Police
Department is such a training program even discussed.
16.
The discriminatory practices of the Department also included the failure to
promote qualified African American Officers as was undertaken against Plaintiff, Nicole
Thomas, to wit:
(a)
Sometime in the late 2006, the FMPD posted
(via e-mail) an “opening” over in the Violent
Crimes Unit of the Detective Division.
(b)
Plaintiff, Thomas, was and is a well educated
female, having received a Master’s Degree in
Human Resource Development in 2003, and
having previously attained her Bachelors Degree
in Business Management, in the year 2000.
(c)
Plaintiff, Thomas, upon learning of the opening
in the Violent Crimes Unit (VCU) quickly
expressed her interest in the position.
(d)
At all times material Defendant had written
procedures and protocols in place which were
required to be followed by both the Department
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and any interested party seeking the VCU
opening/position.
17.
(e)
Plaintiff, Thomas, complied with all of the
Department’s written procedures in order to seek
the VCU position, and formally submitted all
necessary paperwork in compliance with
Department Rules.
(f)
As part of their continuing discriminatory policy
based on race and gender, Plaintiff, Thomas,
learned in mid 2007, that the Department simply
“passed her over” and neglected to follow any of
its own internal procedures (General Order 18.1
for Specialized Assignment). Instead, the upper
management appointed a female and male to
the VCU opening. Both Officers who were
promoted, were Caucasian, and the female
Officer promoted (i.e. Michelle Rand), never
completed any forms or paperwork to request
the position; in contravention of Department
policies.
(g)
At all times material Plaintiff, Thomas, had been
employed longer than the two (2) Caucasian
officers, was much more educated than said
officers, and had been promoted much earlier to
the Detective Division than the other officers.
Detective Thomas had also carried and closed
one of the largest case-loads in the Detective
Division.
Unfortunately, the FMPD has a well documented, several decades-long,
history of failing to promote African Americans and other minorities above less educated
and less-trained Caucasian Officers; as well as a history of treating minority Officers like
second-class citizens.
18.
Most of the Detective Division Supervisors knew Plaintiff,
an African
American female, had expressed interest in the opening in the Violent Crime Division. In
order to diminish or quell Plaintiff’s chances to be promoted, based on Defendant’s
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continuous discriminatory policy a concerted effort was undertaken to paint her as
incompetent.
19.
pending,
For example, in mid December, 2006,
while Plaintiff’s application was
Sergeant Musante issued a “written counseling”, (i.e. a derogatory note
concerning Plaintiff’s professional performance) a blatant attempt to help deride her
chances for the promotion/transfer into VCU.
20.
Plaintiff, quickly discerned that statements within the “counseling” were
exaggerated. Plaintiff refused to sign the “written counseling” and submitted a rebuttal.
Plaintiff immediately went up the chain of command to a Captain, within the Department,
to complain about the false “counseling” report fabricated by Sergeant Musante. Plaintiff
was then advised by the Captain, that if he had to initiate another investigation due to
Plaintiff’s complaint, Plaintiff would end up with two (2) written reprimands. So instead of
attempting to assist Plaintiff, or giving any thought to investigating her concerns of bias,
the Captain (a Caucasian male) threatened Plaintiff with further reprisal for her having
stepped forward to complain about being treated unfairly.
21.
On January 30th, 2007, Sergeant Musante called Plaintiff on her Department
issued cellular phone and instructed Plaintiff to immediately report to the Department for
an emergency conference. Sergeant Musante also indicated that another Officer would
be sitting in on the conference.
22.
Since Plaintiff was “off-duty” at the time of the call, Plaintiff assumed some
emergency had arisen and immediately left her home in Lehigh Acres and drove into
downtown Fort Myers.
23.
Upon arriving at the Police Department, Plaintiff was asked about her prior
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actions, weeks earlier, in mid-January, when some complaint came into the Property
Division.
Apparently, Plaintiff was on dinner break when a complaint had been called in,
and Detective Joshua Steinman was available and capable of responding to the complaint
without incident.
24.
After Plaintiff advised that Detective Steinman had been available to respond,
Sergeant Musante and the other Police Officer abruptly replied: “This meeting is over”.
When Plaintiff made inquiry why this brief conference could not have taken place a day or
two later, when she would be “on-duty”, both Musante and the other Police Officer `
simply replied “yes”, and began laughing hysterically.
25.
Even though the minimum overtime hours for a “call in” (i.e. when an off-
duty Officer is summoned to Headquarters) is two (2) hours; Sergeant Musante advised
Plaintiff that when they called her to come in, she would only be entitled to forty-five (45)
minutes of overtime.
26.
On other occasions, Sergeant Musante called Plaintiff to come in to the
Department for mundane matters, when he knew she was “not on duty”. He called her to
come in, sometimes just to get Plaintiff to sign a document, that would take three (3) or
four (4) seconds, which easily could have been completed the following day when she was
“on duty”.
27.
In May, 2007, Plaintiff met with the Chief of the Department to complain
about how the Department failed to adhere to its own procedures in selecting a Detective
for the VCU position. She complained about racial bias within the Department, her work
conditions, and the overall harassment she was receiving. Despite having informed upper
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management of the racial bias and harassment, nothing was done to change the
Department’s continuing policy of race and gender discrimination.
28.
Since the work-place harassment continued unabated, Plaintiff, in 2007, filed
a formal complaint with the City of Fort Myers Human Resources Division; and in 2008 filed
a formal complaint with EEOC.
29.
Shortly after filing said complaints, supervisory personnel within the
Department prepared and submitted an annual performance evaluation on Plaintiff,
indicating that she “poorly” performed most of the tasks of her job. Of course, the
Department had not conducted any annual evaluations of Plaintiff during the preceding six
(6) or seven (7) years.
30.
The Human Resource Department informed Plaintiff that she should take a
couple of days off due to the “degree of the continuous harassment” she was experiencing.
Plaintiff agreed to take a few days off and she was reassured that during this time, the
Human Resource Department would look into her complaints.
31.
Upon returning to the Department, upper management immediately informed
Plaintiff that she was to curtail her normal duties, and would be sitting “desk duty”.
32.
Plaintiff made several inquiries to the Human Resources Department to try
and find out what progress was being made with their investigation of her complaint, and
no response was forthcoming.
33.
Three (3) months went by, as Plaintiff remained on desk duty. Plaintiff was
then invited to come down to Human Resources to view the FMPD’s response to her
complaint. Only then, upon reading the City’s response, did Plaintiff learn for the first time
that the Department apparently had put her on Administrative Duty, while she herself was
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apparently under investigation.
34.
Plaintiff was never formally notified of being placed on Administrative Duty,
or that she was under investigation, and having done so the Department was in violation
of Plaintiff’s “Officers Bill of Rights”.
35.
The “Administrative Duty” issued to Plaintiff was pre-textual to conceal the
actual discrimination that was occurring, and was in direct retaliation for Plaintiff having
filed a formal complaint of discrimination.
36.
One result of Plaintiff having filed complaints against Defendant’s
discriminatory policies was to eliminate her normal Detective duties and responsibilities,
and instead she was placed at a desk position, subject to laughter and direct ridicule by
her supervisors.
37.
At all times material, Plaintiff was issued a City of Fort Myers patrol car.
After filing her complaint of discrimination, there were also multiple occasions when Plaintiff
came out of her house, only to find that her patrol car tires were flat, and had been
punctured by a knife blade.
38.
In addition to the aforementioned, Plaintiff was subjected to numerous
trumped-up disciplinary action reports after she sought the position with VCU. Prior to that
time, Plaintiff had been with the Detective Division for several years, and had a clean
record.
39.
Plaintiff also learned two (2) of her supervisors (both Caucasians) tried to get
her demoted back to “patrol”, and one in particular was heard stating that she “was a dumb
black bitch”.
40.
Additionally, as will be demonstrated later, the Defendant, intentionally failed
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to abide by its own polices and procedures in order to prevent Plaintiff from seeking
internal review of her job status through the Collective Bargaining Agreement, the City of
Fort Myers Department of Human Resources, and/or through in-house administrative
procedures.
After Occurring Acts of Continual Discrimination
By the Fort Myers Police Department
41.
In 2009, 2010, and through September 8th, 2011, as a continuing act of
harassment, retaliation and discrimination, the Defendant, through its upper management,
assigned various Police Officers, in unmarked cars to conduct clandestine surveillance of
the Plaintiff within her residence, and her neighborhood (located in Lehigh Acres, East Fort
Myers); which is well beyond the Police Department’s official geographical boundaries.
42.
Plaintiff was not under any identifiable investigation in 2009, 2010 and 2011;
yet the Department was attempting to find some act or action committed by Plaintiff while
off-duty; which it could then use to try and justify her dismissal from the Department; and
this was part of Defendant’s continuing process of harassment, retaliation and
discrimination, due to Plaintiff having availed herself of protective policies under Title VII.
43.
At all times material, Plaintiff was issued a Police radio by the City of Fort
Myers Police Department, which purpose in-part was to insure Officer safety in order to
request back-up, additional Police assistance, and for other official Police related matters,
such as reporting on-going crimes or the location of suspects. Plaintiff in the performance
of her official duties discovered after February, 2009 that the Defendant, unbeknownst to
her, had intentionally interfered and/or tampered with the operation of her radio, as part of
its continuing policy of discrimination, retaliation and harassment, thereby jeopardizing her
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safety and her ability to effectively perform her official duties.
44.
The City of Fort Myers Police Department maintains strict policies and
procedures associated with annual reviews and evaluations. Said reviews are to transpire
annually around the anniversary date of when the Officer was originally hired.
45.
As part of Defendants continuing discrimination, harassment, and retaliation
against Plaintiff, the Defendant did not conduct Plaintiff’s annual mandatory evaluations
in 2009, 2010, and 2011; which effectively eliminated (procedurally) any opportunity to
challenge her desk assignment or the limitations placed on her positions,
through
administrative channels within the Department, or with the City of Fort Myers Human
Resources Department, and/or through the Collective Bargaining Agreement.
46.
Plaintiff also spoke with Police Benevolent Association (PBA) attorneys
regarding her employment status in 2009, 2010 and 2011, but because she had not been
reviewed (i.e. as required annually), or demoted from her rank as a Detective, the PBA
advised there was simply no review or appeal process available to her; again confirming
she was intentionally left in limbo, thereby depriving her of her procedural due process
rights.
47.
Another hallmark of Defendant’s continuing pattern and practice of racial
discrimination, gender discrimination, work place harassment and retaliation in 2009,
2010, up through the present, is readily discerned by restrictions placed on Plaintiff’s work
assignments by the Defendant, through the actions of its supervisors.
48.
For example, standard policies and procedures require that on murder cases,
all Detectives in Plaintiff’s Unit who are “on-duty” are required to report to the crime scene
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to be assigned individual tasks to effectively pursue the investigation.
49.
In furtherance of its continuing police of harassment, retaliation and
discrimination, from 2009 through to the present, the Defendant, through its supervisory
staff, when Plaintiff attempted to perform her official duties, would advise Plaintiff her
assistance was not needed, further ostracizing and embarrassing
her within the
Department’s rank and file. If she appeared at an investigation to assist, she was
instructed that her assistance was not necessary.
50.
On several occasions in 2010, 2011, 2012 and 2013, Plaintiff responded to
“at-scene” investigations, and upon making official inquiry, she was avoided, and/or
ignored, sometimes for extended periods of time. No other Fort Myers Police Department
Officers would answer her questions or provide any information to her, thereby preventing
her from performing her job. Crime scenes were permitted to remain dormant or stale until
the supervisors called (off-duty) Detectives at home, to come to the scene, thereby
jeopardizing the investigation; and further ostracizing and humiliating Plaintiff in the
presence of the other Officers.
51.
During the years 2009 through 2012,
when Plaintiff was called to a few
crime scenes, and began to talk to witnesses, she would soon discovery that her back-up
Officers had abandoned her, and had fled the crime scene, potentially placing Plaintiff’s
life and safety at risk. On one particular occasion Plaintiff literally observed, upon turning
around, the on-scene Officers running to their patrol cars to leave the scene.
52.
In 2012, Defendant decided it would conduct an annual evaluation of Plaintiff
and assigned the responsibility to Sergeant Hoover, now also her supervisor, yet he is one
of the same individuals who was previously involved in conducting clandestine surveillance
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of Plaintiff at her residence up through September, 2011.
53.
The 2012 evaluation of Plaintiff collectively earned her a rating of “2", which
falls in the lowest “satisfactory range”; but intentionally allows the Department to avoid
giving any explanations for the ratings. As such Plaintiff cannot challenge any of the
findings. The Department policy and procedure manual also required said findings to be
brought to Plaintiff’s attention at least ninety (90) days prior to issuing the final evaluation;
yet this was not done, thereby preventing Plaintiff from exercising her procedural due
process rights. In addition, the evaluation itself by this particular Officer constituted a direct
violation of the internal policies of the Department (i.e. Fort Myers Police Department
General Order 7.11): (1) to foster fair and impartial personnel decisions, and (2) to provide
a fair means for measuring and recognizing the individuals performance.
54.
At all times material, after February, 2009, and through the present,
Defendant intentionally attempted to isolate Plaintiff, by assigning cases to Plaintiff that
required limited investigations, very limited need for interaction with the public and her coworkers; all as part of Defendant’s ongoing policy of discrimination and harassment, as
well as retaliation for her having engaged in protective activity under Title VII.
55.
During the Fall of 2011, Defendant, through its management staff, confronted
Plaintiff directly demanding information concerning her EEOC filing and threatening Plaintiff
that they could do whatever they wanted because they held a supervisory position. One
Caucasian supervisor then gave direct orders to other supervisors indicating if Plaintiff
complained about anything to “write her up” as being insubordinate.
56.
At all times material,
and from February, 2009 through the present,
numerous Caucasian Police Officers and supervisors employed by Defendant have
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discriminated against Plaintiff in various forms, all of which has created a pervasive hostile
work environment and is in direct retaliation for Plaintiff having filed a discrimination
complaint with EEOC, under Title VII, to wit:
57.
(a)
Derogatory e-mails directed at Plaintiff,
continuously calling her incompetent, claiming
she is playing the race card, or playing the
gender card;
(b)
Threatening Plaintiff that due to her EEOC filing
she will be leaving the courtroom crying;
(c)
Displaying derogatory and dismissive handgestures;
(d)
Several Caucasian Officers were seen making
disgusting facial expressions toward Plaintiff.
(e)
Several Caucasian Officers stare her down every
time she passes them by; while others make
crying noises while she is in their presence.
(f)
On many other occasions Officers who are
speaking and are at mid-sentence, will just stop
talking in front of her or as she passes by,
creating a zone of silence whenever she is in
their presence.
At all times material, Defendant assigned a specific marked unit Police
vehicle to the Plaintiff and in accordance with Police policy, she was permitted to drive said
vehicle home each day.
58.
On or about January 21st, 2012, Plaintiff drove her assigned vehicle to Police
Headquarters. Plaintiff parked her vehicle, locked it up, and entered the Headquarter’s
building.
59.
Sometime later Plaintiff exited the building, entered her assigned patrol
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vehicle and when she turned the air-conditioning system on, she was immediately sprayed
with “O.C. Oleoresin & Pepper Spray”. Her eyes and nose began to burn and her face
started stinging.
60.
Plaintiff immediately recognized the aerosol defense spray odor, as the exact
product is dispensed by the City of Fort Myers Police Department to its Officers for use
against assailants as a mechanism of “non-lethal force”.
61.
Plaintiff immediately put her car windows down and exited the vehicle. This
incident demonstrates, again, the nature and extent of Defendant’s continuing policy and
practice of subjecting Plaintiff to discrimination, retaliation and harassment in violation of
Title VII.
62.
On July 5th, 2011, the Lee County Office of Equal Opportunity (EEOC) issued
its Final Investigative Report, under Title VII of the Civil Rights Act of 1964, as amended
and under Lee County Ordinance #00-18, and concluded that Plaintiff was indeed
discriminated against by the Department. The findings confirmed discrimination occurred
based on Plaintiff’s race and gender;
as well as retaliatory discrimination. Said Final
Investigative Report is incorporated herein in all respects, and is attached hereto as
Exhibit “C”.
63.
The Lee County Final Investigative Report was forwarded to the EEOC office
in Miami for additional review. The Miami Branch of the EEOC, after reviewing the file
“affirmed” the findings, and then transferred the file to the U.S. Department of Justice,
in Washington, DC.
64.
The Department of Justice issued a letter advising they do not undertake
cases involving a single complainant, and thus the ninety (90) day right to sue letter was
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issued. (See Exhibit “B”, supra).
COUNT I
(RACE DISCRIMINATION)
Plaintiff, Thomas, realleges and reincorporates by reference, paragraphs
one (1) through sixty-four (64), as if fully set forth herein; and further states:
65.
Plaintiff,
at all times material, as an African American, is within the class
of persons protected by Title VII of the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972, and the Civil Rights Act of 1991, 42 U.S.C.A.
§§2000e to 2000e-17.
66.
At all times material, Plaintiff, Thomas, had intentionally been treated by
Defendant, less favorably than her “Caucasian” peers on the Police force because she
is African American.
67.
At all times material, Defendant, permitted and in some cases blatantly
authorized supervisory personnel to discriminate against Plaintiff, an African American
female, with the intent to force Plaintiff to quit her position with the City of Fort Myers Police
Department.
68.
Defendant, at all times material, engaged in systematic disparate treatment
of black employees, including toward Plaintiff, Thomas, resulting in Plaintiff suffering a
multitude of adverse employment actions.
69.
Defendant, intentionally treated Plaintiff differently than Caucasian Officers
in matters directly affecting the terms and conditions of her work, resulting in an extremely
hostile work environment.
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70.
Defendant’s intentional discrimination of Plaintiff, because she is an African
American, violated Plaintiff’s rights under Title VII of the Civil Rights Act of 1964,
as
amended by the Civil Rights Act of 1991, and Florida Statutes §760.01, et. seq. and has
caused Plaintiff damages which include, but are not limited to, actual out of pocket
pecuniary losses, future pecuniary losses, emotional pain and suffering, inconvenience,
mental anguish, loss of enjoyment of life and other past pecuniary losses.
WHEREFORE, Plaintiff, Audenia Nicole Thomas, demands judgment be entered
against Defendant for:
(a)
Compensatory Damages;
(b)
Punitive Damages;
(c)
Costs and Attorneys Fees;
(d)
Pre-Judgment and Post-Judgment interest as appropriate; and
(e)
Any other relief this Court deems just and proper.
COUNT II
(GENDER DISCRIMINATION)
Plaintiff, Thomas, realleges and reincorporates by reference, paragraphs one (1)
through sixty-four (64), as if fully set forth herein; and further states:
71.
Plaintiff, at all times material, as an African American female, is within the
class of persons protected by Title VII of the Civil Rights Act of 1964, as amended by the
Equal Employment Opportunity Act of 1972, and the Civil Rights Act of 1991, 42 U.S.C.A.
§§2000e to 2000e-17.
72.
At all times material, Plaintiff, Thomas, has been intentionally treated by
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Defendant, less favorably than her “Caucasian” male peers on the Police force because
she is an African American woman.
73.
At all times material, Defendant permitted and in some instances blatantly
authorized supervisory personnel to discriminate against Plaintiff, with the intent to force
Plaintiff to resign from her position with the City.
74.
Defendant, at all times material, engaged in systematic discrimination of
African American female employees, inclusive of Plaintiff, resulting in Plaintiff suffering a
multitude of adverse employment actions.
75.
Defendant, intentionally treated Plaintiff differently than female Caucasian
Officers, and mail Caucasian Officers in matters directly affecting the terms and conditions
of her work, resulting in an extremely hostile and biased work environment.
76.
Defendant’s intentional discrimination of Plaintiff, because she is a female
African American, violated Plaintiff’s rights under Title VII of the Civil Rights Act of 1964,
as amended by the Civil Rights Act of 1991, and Florida Statutes §760.01, et. seq. and
has caused Plaintiff damages which include, but are not limited to, actual out of pocket
pecuniary losses, future pecuniary losses, emotional pain and suffering, inconvenience,
mental anguish, loss of enjoyment of life and other past pecuniary losses.
WHEREFORE, Plaintiff, Audenia Nicole Thomas, demands judgment be entered
against Defendant for:
(a)
Compensatory Damages;
(b)
Punitive Damages;
(c)
Costs and Attorneys Fees;
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(d)
Pre-Judgment and Post-Judgment interest as appropriate; and
(e)
Any other relief this Court deems just and proper.
COUNT III
(RETALIATORY DISCRIMINATION AND HARASSMENT)
Plaintiff, Thomas, realleges and reincorporates by reference, paragraphs one (1)
through sixty-four (64), as if fully set forth herein; and further states:
77.
Title VII, not only prohibits discrimination by an employer against an
employee based on race and gender, but it also prohibits retaliation against an employee
for protesting discrimination.
78.
Title VII, provides that it “shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . . because [such employee] has
opposed any practice made an unlawful practice by this sub-chapter”. 42 U.S.C. §2000e3(a).
79.
That at all times material, upon filing complaints of discrimination, and upon
verbally transmitting such complaints to upper management and supervisors within the
FMPD, Plaintiff, Thomas, thereby participated in and/or engaged in a protected activity,
that was known to the Defendant.
80.
At all times material, Defendant’s intentional and willful actions in filing false
evaluations of Plaintiff, creating fictitious disciplinary actions, failing to perform annual
evaluations, stripping Plaintiff of all of her duties and assignments as a Detective, as well
as other detailed deliberate actions by Defendant as hereinabove set forth, supra,
constituted “an employment decision or action that was disadvantageous to the Plaintiff”
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in her employment with the City.
81.
That at all times material, Defendant’s intentional and willful discrimination
and harassment of Plaintiff, as set forth, supra, were directly caused by, and/or causally
connected to Plaintiff’s protected activity of having verbally and formally filed complaints
of discrimination against Defendant.
82.
As a result of the aforementioned actions by Defendant, Plaintiff has suffered
damages which include, but are not limited to, actual out of pocket pecuniary losses,
future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss
of enjoyment of life and other past pecuniary losses.
WHEREFORE, Plaintiff, Audenia Nicole Thomas, demands judgment be entered
against Defendant for:
(a)
Compensatory Damages;
(b)
Punitive Damages;
(c)
Costs and Attorneys Fees;
(d)
Pre-Judgment and Post-Judgment interest as appropriate; and
(e)
Any other relief this Court deems just and proper.
COUNT IV
(DENIAL OF PROCEDURAL DUE PROCESS)
Plaintiff, Thomas, realleges and reincorporates by reference, paragraphs one (1)
through sixty-four (64), as if fully set forth herein; and further states:
83.
Plaintiff, as a public employee, had a clearly established right to procedural
due process associated with annual reviews, evaluations, promotions, advancement and/or
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as to disciplinary actions brought against her by Defendant pursuant to Article XIV §1 of
the Constitution of the United States.
84.
Plaintiff, as an employee of the City of Fort Myers, was employed under a
Collective Bargaining Agreement, which bestowed certain rights and privileges to Plaintiff
as agreed to by the City. In addition, at all times material,
Plaintiff had a property
entitlement to her position as an active duty Detective.
85.
Notwithstanding, said Constitutional Rights and contractual terms, the
Defendant breached Federal law, and the Collective Bargaining Agreement by deny
Plaintiff annual reviews for a three (3) year span, and having assigned her to a dubious
role or function, and isolating her without any means of recourse.
86.
Defendant failed to give Plaintiff any pre-determination hearing, and proper
disclosure, as required in violation of Plaintiff’s Constitutional Rights as set forth above.
87.
Defendant’s actions in demoting Plaintiff to desk duty, without any recourse,
was in direct violation of its own internal procedures for discipline and administrative
actions and was a direct violation of the City’s Collective Bargaining Agreement.
88.
As a result of the aforementioned actions by Defendant, Plaintiff has suffered
damages which include actual out-of-pocket pecuniary losses, future pecuniary losses,
emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other past and future pecuniary losses.
WHEREFORE, Plaintiff, Audenia Nicole Thomas, demands judgment be entered
against Defendant for:
(a)
Compensatory Damages;
(b)
Punitive Damages;
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(c)
Costs and Attorneys Fees;
(d)
Pre-Judgment and Post-Judgment interest as appropriate; and
(e)
Any other relief this Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff, Thomas, demands trial by jury on all issues so triable as to each and every
Count.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 28th day of June, 2013, I electronically filed
the foregoing with the Clerk of Court by using the CM/ECF system, which will send a notice
of electronic filing to the following: Grant W. Alley, Esquire at
[email protected] , and
Cody B. Vaughan-Birch, Esquire at
[email protected],
[email protected],
and
[email protected]
Respectfully submitted:
By: /s/ David B. Mishael
David B. Mishael, Esquire
Florida Bar No.: 376442
David B. Mishael, P.A.
8603 South Dixie Highway
Suite 315
Miami, FL 33143
Tel.: 305-668-3226
Fax: 305-668-9866
E-Mail:
[email protected]
AND
Steven H. Kassner, Esquire
Florida Bar No.: 372331
Steven H. Kassner, P.A.
4000 Ponce De Leon Blvd. #470
Miami, FL 33146
(305) 740-5404 (Phone)
(305) 777-0449 (Fax)
E-mail:
[email protected]
23