To: Noel Garcia

From: Terel Watson

Date: December 16, 2010

Re: Swan Lake Police Department Claims

 

Question Presented:

There are three questions to be addressed in this memorandum.

1. Under Federal Law in the 2^nd Circuit whether Office Jones has a valid claim for discrimination in violation of Title VII based on an “English Only” policy, given that she spoke to her co-worker and friend, both of Cuban descent, in Spanish. Thus a written derivative was implemented stating that the police station where she worked would have an “English Only” policy for the purposes of avoiding cliques.
2. Whether in New York Officer Jones has a claim for sexual harassment based on the fact that she observed two co-workers observing pornography and when she approached them about was asked to “join the party” and that if she wants to they can turn off the pornography and she can “entertain them.”
3. Whether the Fourth Amendment rights of Mike Lowell were violated when he was stopped in his vehicle that fit the description for a car suspicion of carrying grenades based solely on an anonymous tip, no grenades were found, and the fact that Mike Lowell observed all traffic laws and did nothing suspicious.

Brief Answer:

1. No. It is required that after a claim for discrimination under Title VII violation that an employer give a valid business justification for this policy. The Lieutenant Reynolds stated the reason being that it would reduce cliques and help with moral. That is a justification that has be used and upheld in court. Also the fact that Officer Jones was bi-lingual shows her ability to speak English proficiently, thus it did not cause a legally cognizable adverse impact upon the terms and conditions of her employment which would have been required for a claim of discrimination under Title VII.
2. No. In order to have a claim for Sexual Harassment it must be proved that the conduct by the male officers was extraordinarily severe and repeated. There is no evidence in this matter that that is the case. The one isolated incident that took place in the male locker room, where two sentences were said to Jones does not rise to the level needed for sexual harassment.
3. Yes. The Supreme Court has ruled that any tip made by an anonymous tipster should be corroborated by other pieces of evidence. These other pieces of evidence may be a consideration of the totality of the circumstances. Being that the driver of the car gave no reasonable suspicion to the officer and the only suspicion had by Officer Jones is the suspicion she arrived with, it can be concluded that Officer Jones failed to corroborate the evidence of the tipster.

Statement of Facts:

Officer Jones is a Police Officer with the Swan Lake Police Department. She is very good friends with another police officer, Sonia Santiago. They are both of Cuban descent and thus are fluent in Spanish. They chose to have conversation in Spanish while at the precinct. Robert Fields another officer at Swan Lake became annoyed because he felt that Officer Jones and Santiago were mocking him in another language. Hence, he proceeded to complain to the commanding officer Lt. Reynolds about the situation. The Lieutenant proceeded to institute an English Only policy at the Police station. He stated that the use of another language was only to be used in the Police Station for police business such at interpreting witnesses, etc.

Officer Jones did not agree with the directive made by the Lieutenant hence she proceeded to walk into the men’s locker room to confront the Lieutenant. When she entered she noticed that Fields and two other officers were viewing pornography on a television. She yelled, “You guys are perverts!” Fields responded saying, “Why don’t you just calm down and join the party. If you want we can turn off the TV and you could entertain us!” She only told her friend, Santiago and no one else.

On August 3, Officer Jones was in her patrol car when a call came in stating to be on the lookout for a red Toyota Camry being driven by a white male in his forties. The description was based on an anonymous tip. The tipster stated that the driver had a grenade that he was intending to use to blow up minorities. Two minutes later she saw a man and car that fit the description. She followed the car as it observed all traffic laws. Afraid for the life of others she pulled the man over and searched his car. He had no grenades, he was let go.

One month later Jones and Santiago was seen speaking Spanish in the precinct so she was fired for insubordination.

 

Discussion:

The first issue at hand in this matter is whether Office Jones has a valid claim for discrimination based on an “English Only” policy given that she spoke to her co-worker and friend in Spanish on the job and the policy was implemented for the purpose of avoiding cliques.

Title VII prohibits employers from discriminating against “any individual … because of such individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a) (1).

The plaintiff must first establish a prima facie case of discrimination or retaliation. To establish a prima facie case of discrimination, the plaintiff must show that: (1) he was a member of the protected class; (2) he was qualified for the job in question; (3) the employer took an adverse employment action against him; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Once the plaintiff makes this prima facie showing, a presumption of discrimination arises, and the burden shifts to the employer to give a “legitimate, non-discriminatory or non-retaliatory reason for the adverse action taken against the plaintiff.” Uddin, 2009 WL 2496270, at 15.

In the case of Velasquez v. Goldwater Memorial Hosp. A Hispanic city hospital employee who asked supervisor whether hospital had a “no-Spanish” policy and whether employee was hired because she could communicate in Spanish with Spanish-speaking patients, did not engage in “protected activity” when she spoke to her co-workers in Spanish, as is required for her retaliation claim under Title VII, the New York State Human Rights Law, and the city human rights law. The employee also never told supervisor that she believed that the policy was discriminatory. Velasquez v. Goldwater Memorial Hosp., 88 F.Supp.2d 257 (S.D.N.Y. 2000).

Pursuant to Title VII, a plaintiff must demonstrate that the defendant employer took the adverse employment action “because of” their protected status. 42 U.S.C. § 2000e-2(a).

In the matter of Pacheco v. New York Presbyterian Hosp. we are informed that it is necessary for the courts to consider whether an employer’s practices show an intent to discriminate on basis of classifications protected by Title VII, including race and national origin. Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, (S.D.N.Y. 2009).  In conducting this analysis, courts consider, among other facts, whether there is evidence that employer, in addition to adopting “English Only” policy, has exhibited other forms of racial or ethnic hostility. Id at 604.

In the matter of Kania v. Archdiocese of Philadelphia the courts found that the relief of ethnic tensions in a valid business justification for the implementation of an English Only policy. This is especially the case where the persons are proficient in the English language. Kania v. Archdiocese of Philadelphia, 14 F.Supp.2d 730, (E.D.Pa. 1998). Although Kania suggests that Father Barszczewski instituted the rule for purely personal reasons, the documents Kania submits in favor of her position demonstrated to the courts otherwise.  After reviewing the Staff Meeting Minutes submitted by Kania, it was clear that the Church adopted its English-only rule to improve interpersonal relations at the Church, and to prevent Polish-speaking employees from alienating other employees, and perhaps church members themselves. Id at 736. Also Kania admitted that she was bilingual. Because she could have readily complied with the English-only rule, it did not cause a legally cognizable adverse impact upon the terms and conditions of her employment which would have been required for a claim of discrimination under Title VII. Id at 736

In the matter in which we are analyzing it would be necessary for Officer Jones to establish that the reason for her being fired is her protected status. 42 U.S.C. § 2000e-2(a). First of all, a person’s language is not a protected classification under 42 U.S.C. § 2000e-2(a) (1). Thus it would be necessary to prove that the discrimination that took place was because of her race or national origin. In the matter of Pacheco v. New York Presbyterian Hosp. we see that it is also necessary to analyze any further action that may have been taken by an employer to show discrimination. It is not evident by the facts of this matter that any further discrimination took place because of Officer Jones’ race or national origin.

Also in our matter the justification given by the Lieutenant has be held in court successfully. When we compare the facts of Kania v. Archdiocese of Philadelphia we see that the relief of ethnic tensions was the business justification that was used in order to rebut a claim of discrimination. Id at 736. Similarly here Lt. Reynolds established this policy in order to avoid the formation of cliques at the precinct that would cause tension on the job. The fact that Officer Jones was bi-lingual is also relevant. As we see in the case of Kania v. Archdiocese of Philadelphia because the plaintiff was bi-lingual she would be able to easily comply with the policy that was set in place. Id at 736. The requirement is that “cause a legally cognizable adverse impact upon the terms and conditions of her employment which would have been required for a claim of discrimination under Title VII”. Id at 736. This was not the case there and nor is it the case here

Hence Officer Jones fails to substantiate a claim for discrimination based on the English Only Policy.

 

The second issue at play is whether Officer Jones has a claim for sexual harassment given that she observed her co-workers observing pornography and was  told to “calm down and join the party” when she scolded her co-workers for watching pornography.

A plaintiff can establish a claim that he or she suffered discriminatory treatment in the workplace through proof that he or she has been subjected to a hostile work environment. Concord Limousine, Inc. v. Orezzoli, 7 Misc.3d 1026, 801 N.Y.S.2d 232 (Sup. Ct. Kings County 2005). To state a discrimination claim based upon a hostile work environment, the plaintiff must allege that his or her workplace was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)

“Unless the alleged conduct is extraordinarily severe, isolated remarks or occasional episodes of harassment will not merit relief.” Constantine v. Kay, 6 Misc.3d 927, N.Y.S.2d 308 (Sup. Ct. Kings County 2004). The case of Harris states that whether the environment is considered sufficiently hostile to support a claim for discrimination on the grounds of hostile work environment is going to be “measured by the totality of the circumstances, including the frequency and severity of the discriminatory conduct, whether such conduct is physically threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff’s work performance.” Harris, 510 U.S. at 23.

In the matter which we are analyzing here this incident that took place in the men’s locker room was nothing more than an isolated incident. As we see in the case of Harris v. Forklift Sys. it is required that the Plaintiff in this case prove that the workplace was “permeated” with abusive and hostile behavior. Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). The fact that Officer Jones proceeded to enter the men’s locker room, shows that the intent of the men was not to direct the pornographic material to her in hopes to harass her.

It may be conceded that that the comments that were directed toward Officer Jones, after she scolded the Officers for watching the pornography, was an act that was intended to harass Jones however as we see in the case of Constantine v. Kay it is required that the act to harass be “extraordinarily severe.” Id at 927 It is also required that the comments be ongoing. Constantine v. Kay also states that “isolated remarks or occasional episodes of harassment will not merit relief.” Constantine v. Kay, 6 Misc.3d 927, N.Y.S.2d 308 (Sup. Ct. Kings County 2004) Based on the facts in this matter the Officers that made these remarks to Jones said exactly two sentences to her. We are not aware of any other remarks being made later on after this isolated incident.

It is for the above stated reasons that Officer Jones not have a claim for sexual harassment.

 

The third issue at play here is whether the Fourth Amendment rights of Mike Lowell were violated when solely using an anonymous tip Officer Jones stopped Lowell and searched his car for grenades.

In order to stop someone the U.S. Supreme Court ruled that reasonable suspicion is needed a person can be stopped and briefly detained by a police officer based on a reasonable suspicion of involvement in a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) Such a detention does not violate the Fourth Amendment prohibition on unreasonable searches and seizure, though it must be brief. Id at 9. Reasonable suspicion does not provide grounds for arrest; however, an arrest can be made if facts discovered during the detention provide probable cause that the suspect has committed a crime. Id at 10.

An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 (2000). Here, the officers’ suspicion that the Appellant was carrying a weapon arose not from the officer’s own observations but solely from a call made from an unknown location by an unknown caller. Id at 266. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Id at 266. However in this matter, the behavior of the Appellant was not such that would give reasonable suspicion to conduct a Terry Stop of the individual. Id at 266. However the Supreme Court found in this matter that the evidence seized should be suppressed because it was the fruit of an unconstitutional seizure. Id at 273. The court found in favor of the defendant because as facts showed there was no corroboration done as to the validity of the claims by the informant. Id at 274.

As we see in the matter at hand Mike Lowell was not acting in a way that would give rise to reasonable suspicion while being followed by Officer Jones. Mike Lowell observed all traffic signals and laws. In order to stop someone you need reasonable suspicion that they are taking part in a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). That would require you to have observed activity that would make an officer of the law suspicious of the forthcoming actions of a person. Officer Jones in this matter failed to observe anything that would be suspicious. Her suspicion came solely from the anonymous tip that was received by the dispatcher. As we see in the matter of Florida v. J.L. a police officer solely used the information of an anonymous tip to stop and search a person. Id at 266. The Supreme Court ruled that the fact that the Defendant had a gun was irrelevant because he was not acting in a way that would give rise to suspicion thus the gun had to be suppressed at trial due to a violation of J.L.’s Fourth Amendment Rights . Id at 273.

For those reasons Mike Lowell has a claim for a Fourth Amendment violation by the Swan Lake Police Department.