United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM United States District Judge
Plaintiff Janine Senanayake, a former deputy sheriff for the
Delaware County Sheriff's Office, brings this Title VII
action alleging that she was sexual harassed by another
deputy sheriff while on and off duty. See 42 U.S.C.
§ 2000e, et seq. Named as defendants are the
Delaware County Board of Commissioners and the Delaware
County Sheriff's Office. Senanayake further alleges that
she was subjected to retaliation when she informed her
supervisors of the harassment and that she was unlawfully
terminated because of her sex and because of a physical
disability relating to her knee.
matter is before the court on the defendants' motion for
summary judgment. For the reasons stated below, the court
grants the motion in part and denies it in part.
Plaintiff Hired as a Corrections Officer
Senanayake applied to be a deputy sheriff with the Delaware
County Sheriff's Office in 2010. (Doc. 61-124). Her
employment history showed that she had been employed by three
separate police agencies in Ohio. (Id.). Her length
of employment at these three police agencies ranged from
three months to one year.
background investigation and check of Senanayake's
references contained a number of positive referrals but also
some areas of concern. One reference indicated that a
“cloud of drama” seemed to follow Senanayake at
the Medina County Sheriff's Office, and another viewed
her as a “liability, ” based on her history of
getting into incidents for which she was disciplined at the
Montville Township Police Department. (Doc. 61-30 at PAGEID
2, 5). Also of concern was the event that led to Senanayake
being fired by the Perry Township Police Department in July
cam video showed Senanayake and the Chief of Police, who
later resigned, kissing and caressing in a police cruiser
while an inmate slept in the back of the car. (Id.
at 5). The video footage was posted online and became
associated with the moniker of “Kissing Cop.”
(Senanayake Dep. at 55).
Walter L. Davis, III and Captain Kevin Savage of the Delaware
County Sheriff's Office were in charge of hiring at the
time Senanayake applied to be a deputy sheriff. (Davis Dep.
at 91, 97). Captain Savage was opposed to hiring Senanayake.
He was concerned about the results of the background
investigation and about the potential disruption that could
come from “Ms. Senanayake's notoriety in the media
as the ‘Kissing Cop.'” (Savage Aff. at ¶
3). After interviewing Senanayake twice, Sheriff Davis
believed that she had made some mistakes in the past but had
an overall good work record. (Davis Dep. at 91-95). Sheriff
Davis made the decision to hire Senanayake but wanted her to
start as a corrections officer for a period before she could
become a deputy. (Id. at 93-94).
began her employment as a corrections officer on September
15, 2010, subject to a one-year probationary period under
Ohio Revised Code § 124.27. (Doc. 61-31). During this
period, she served as an at-will employee and was not a
member of the collective bargaining unit. (Id.;
Savage Aff. at ¶ 4).
Alleged Sexual Harassment by Deputy Pitts
Sheriff Rashad Pitts and Senanayake met soon after she became
a corrections officer. Pitts brought individuals to the
Delaware County jail for processing and Senanayake had
“very brief conversations” with him, as she would
with other deputies. (Senanayake Dep. at 174). The
“first few times he came in[, ] it was fine.”
(Id. at 175). But at some point within the first
month of Senanayake's employment, Pitts allegedly said,
“[S]he's the woman that's going to have my
baby.” (Id. at 174-75). He said this while he
and Senanayake were in the booking area of the jail and said
it loudly enough that law enforcement personnel and inmates
nearby could hear him. (Id. at 175). Senanayake
“felt very embarrassed” and demeaned.
(Id. at 176).
admits to having made a comment to Senanayake, though he
recalls having said, “[I]t only takes two minutes to
have a baby.” (Pitts Dep. at 9). According to Pitts and
other deputies who were present, Pitts made his statement in
response to Senanayake grabbing her crotch and saying,
“Pitts, you couldn't handle this.” (Pitts
Aff. at ¶ 2; Dore Aff. at ¶ 5; Burke Aff. at ¶
9). Senanayake denies having made such a gesture or
statement. (Senanayake Dep. at 223).
to Senanayake, from that point forward Pitts
“constant[ly]” made unwelcome comments to her.
(Senanayake Dep. at 223). His comments included repetition of
“baby-making” statements and requests that she go
out with him, which she always declined. (Id. at
176) (testifying that he asked, “[W]ant to go out? Want
to go to the clubs?”). Senanayake also states that
Pitts made the following comments to her: “You're
sexy, you're hot”; you have “nice legs”
and a “nice body”; you are
“beautiful” and “pretty”; “I
would like to take you to the club” and have you
“on my arm”; and “I'm going to marry
you some day.” (Id. at 176, 178). She
repeatedly asked Pitts to stop making such comments, but
“he just laughed everything off, [like] it was
nothing.” (Id. at 188-89).
felt that the comments made by Pitts were harassing,
demeaning and embarrassing. (Senanayake Dep. at 189). Some of
the comments occurred in front of co-workers and inmates in
the booking area of the jail. (Id. at 186). She
believed that this conduct caused others to disrespect her.
(Id. at 192, 227). Inmates who heard Pitts harass
her made similar comments to her and boasted that she could
not “write them up” because they were saying
nothing worse than what Pitts had said to her. (Id.
at 228). Senanayake received messages in her mailbox, she
believed from other employees, with the word
“bitch” or “cunt” on them and with
statements of how she did not deserve to be in law
enforcement. (Id. at 274-76).
to Pitts, he made the baby-making comment just once and did
not repeat it. (Pitts Dep. at 9). Pitts denies ever asking
Senanayake out, having “ever come on to her in any
way” or ever making any sex-based comments to her.
(Id. at 11; Pitts Aff. at ¶ 2). Pitts states
that the two of them did “joke” one time
“about going to a club together.” (Pitts Aff. at
¶ 2). This joke precipitated Senanayake grabbing her
crotch and telling Pitts that he “couldn't handle
this” and Pitts responding that “it only takes
two minutes to have a baby.” (Id. at ¶
2). Pitts states that both of them laughed after that
states that one of her supervisors, Sergeant Jessie Jackson,
observed Pitts making comments to her. (Senanayake Dep. at
176). Senanayake complained to Jackson about the comments
Pitts made and stated that it was “awful” and
made her feel “very embarrassed.” (Id. at
176, 180, 187-88). Jackson said she would deal with the
matter, but she never did. (Id. at 188).
also complained to Jackson about the messages she received in
her mailbox, but nothing was done about it, so far as
Senanayake knows. (Id. at 276).
to Jackson, she never observed Pitts make an improper comment
to Senanayake. (Jackson Aff. at ¶ 2). Jackson also
denies that Senanayake ever complained to her about any
comments made to Senanayake by Pitts. (Id.). In her
affidavit, Jackson does not address whether she was aware of
the alleged messages Senanayake received in her mailbox.
Senanayake describes the harassing comments from Pitts as
having been “constant, ” it is uncertain how much
contact Senanayake and Pitts had while she worked as a
corrections officer. According to Jackson, who served as
Assistant Director of the Jail, road patrol deputies like
Pitts came to the booking area of the jail to drop off
inmates or do paperwork but otherwise were “rarely in
jail.” (Jackson Aff. at ¶ 3). Senanayake states
that Pitts made comments to her when he was dropping inmates
off and that he came to the jail to see her even when he did
not have an inmate to drop off. (Senanayake Dep. at 186-87).
Further, Pitts states that while Senanayake was a corrections
officer, “she regularly asked to do ride-alongs with
[him] to learn the patrol side so she could be promoted one
day to Deputy Sheriff.” (Pitts Aff. at ¶ 3). Pitts
allowed her to join him for ride-alongs on three or four
occasions. (Pitts Dep. at 18).
also states that Pitts made a sexually-harassing comment to
her at a courthouse. (Senanayake Dep. at 180, 271). Pitts
made the comment in front of a security officer, who laughed
when he heard it. (Id. at 180). The content of what
Pitts said and when exactly the incident took place is not
reflected on the record before the court - during her
deposition, Senanayake was not asked any further questions
about the matter.
further asserts that there were “[q]uite a few
times” where Pitts tapped her backside with a clipboard
as she was filing out of a room with deputies following roll
call. (Senanayake Dep. at 179-80). Pitts denies that he
tapped her backside with a clipboard. (Pitts Aff. at ¶
2). It is unclear from the record exactly when this alleged
conduct occurred - whether it happened when Senanayake was a
corrections officer, a deputy, or both. A fair reading of the
Senanayake's testimony is that it at least started when
she was a corrections officer and would report to roll call
when she allowed to do a ride-along. (Senanayake Dep. at
Promotion to Deputy Sheriff and Perceived Favoritism from
Colleen Wilson prepared a performance review of Senanayake on
December 5, 2010. The review sheet listed 67 areas or items
for which a score between 1 and 5 was assigned. Wilson
predominately gave scores of 3 to Senanayake. (Doc. 61-37)
(showing that a score of 3 was given 61 times and that scores
of 2 and 4 were given for the other items). This performance
review received the attention of Sheriff Davis. He personally
marked up the review with his critique of Wilson's
assessment. (Id.; Wilson Aff. at ¶ 3). Sheriff
Davis discussed the matter with Wilson and stated that
Senanayake deserved higher scores. Wilson “felt
pressured to change [her] assessment based on his angry
response.” (Wilson Aff. at ¶ 3).
April 2011, Senanayake took a complaint - that Sergeant Randy
Pohl was harassing her with repeated requests to go on a date
with him - directly to Sheriff Davis. (Doc. 61-40). Her
directly reporting to him was contrary to the sexual
harassment policy, which instructed employees to make
complaints to immediate supervisors, and contrary to Sheriff
Davis's well-known policy that concerns were to be
addressed only through the chain-of-command. (Ex. 15 at
§ IV; Davis Dep. at 179-80; Savage Aff. at ¶¶
13-14; Petrozzi Aff. at ¶ 5). Despite Senanayake jumping
the chain-of-command, Sheriff Davis assigned Captain Savage
to handle her complaint. (Doc. 61-40).
Davis promoted Senanayake to deputy sheriff on May 5, 2011.
(Doc. 61-45). In this position, she was required to begin a
new one-year probationary period. (Id.).
Probationary deputies had to complete a three-month field
training period in which they were paired with experienced
officers for on-the-job training. (Buttler Aff. at ¶ 4).
Sheriff Davis's direction, deputy Kevin Turner was
assigned to be a field training officer for Senanayake.
During the field training, Turner observed numerous concerns
with Senanayake's performance. He believed that she
“consistently stopped minority motorists at much higher
rates than white drivers” and that she disregarded his
warning not to engage in racial profiling. (Turner Aff. at
¶ 5). He observed that she “regularly turned off
her microphone to take personal calls from Sheriff
Davis” and that she was “almost constantly
texting if she was not driving.” (Id. at
¶ 6). Turner states that he was hoping to receive a
promotion at the time and, because of his fear of retaliation
from Sheriff Davis, he “did not accurately document her
performance deficiencies” or otherwise address her
“improper behavior.” (Id. at
¶¶ 3, 6).
time, many officers had formed the perception that Senanayake
was receiving special treatment from Sheriff Davis and had
direct access to him. (Turner Aff. at ¶ 3) (stating that
there were rumors circulating that the “usual
rules” did not apply to Senanayake); (Campbell Aff. at
¶¶ 7-8) (stating that Senanayake claimed to know of
Sheriff Davis's personal likes and dislikes); (Spring
Aff. at ¶ 4) (stating that he believed Senanayake and
Sheriff Davis often texted each other during morning roll
call). Captain Savage thought that it was unusual for
Senanayake to have been promoted to deputy without completing
her probationary period as a corrections officer and that it
was unprecedented for Sheriff Davis to have ordered that she
receive a coveted day shift with weekends off work. (Savage
Aff. at ¶ 12; see also Vance Dep. at 43). Chief
Deputy John Petrozzi was instructed by Sheriff Davis to
ensure that Senanayake was given a day shift as a reward for
her loyal service. (Petrozzi Aff. at ¶ 8). Many
officers, including Pitts, believed that “Sheriff Davis
would retaliate against anyone who Ms. Senanayake
disliked.” (Pitts Aff. at ¶ 4; Spring Aff. at
¶ 3; Burke at ¶¶ 3-4)).
summer of 2011, Senanayake and Sheriff Davis began having a
romantic relationship. (Senanayake Dep. at 146-47). At the
time, Sheriff Davis was married; he viewed his marriage as
having been “long over” before he began his
relationship with Senanayake. (Davis Dep. at 155).
Additional Alleged Sexual Harassment by Pitts and the
Incident at the County Fair
asserts that at some point in the summer of 2011, Pitts
pulled her over on U.S. Route 23 while she was off-duty.
Pitts told her that he had turned off his microphone and that
he pulled her over so that he could see what she was wearing.
(Senanayake Dep. at 249-50). Pitts commented that she had
“nice boobs” and legs and said that he wished he
could take her somewhere when he got off work. (Id. at
250). Senanayake told him no and questioned why she had been
pulled over, at which point Pitts said “whatever”
and walked back to his car. (Id.). Pitts states that
he pulled Senanayake over because she was speeding, but
decided not to give her a ticket when he realized that she
was the driver. (Pitts Dep. at 10). He denies that he asked
her out or made any comments about her appearance.
(Id. at 11).
mid-September 2011, Pitts and Senanayake were working at the
Delaware County Fair. When they drove past the car of Sheriff
Davis on a golf cart, Senanayake said, “I wonder whose
car that is.” (Pitts Aff. at ¶ 7). Pitts, who
intended to be making a joke, replied, “Oh please, you
know whose car that it. It's parked outside your house
every night.” (Id.). Senanayake took offense
to this remark and called Pitts a liar. (Id.). Pitts
claims that Sheriff Davis angrily approached him at the fair
that night, got in his face and threatened to fight him.
(Id.; Pitts Dep. at 13-14). Sheriff Davis denies
that any altercation took place. (Davis Dep. at 164).
Plaintiff's Discussions with Sergeant Burke and Alleged
her first month as a deputy, Senanayake told Sergeant
Jonathan Burke, one of her supervisors, about the comments
Pitts had made to her when she was a corrections officer.
(Senanayake Dep. at 192-93). She said to him that the
comments had been made in front of other people and were
“demeaning” and “embarrassing” and
that “people start to mistreat you . . . when you have
someone who is wearing the same uniform that disrespects
you.” (Id. at 192). She asked that Burke tell
Pitts to stop making such comments. Burke initially responded
that Pitts was his “buddy” and a “good
dude” and was just “kidding around.”
(Id.). But Burke agreed to “tell him to stay
off, ” though Senanayake asked that it not
“become a big investigation.” (Id.).
a couple of days, Senanayake “knew [Burke] had said
something to Pitts because his entire demeanor” changed
when they were at morning roll call. (Senanayake Dep. at
193). Instead of Pitts greeting her with his usual
“hello” or “hey, sexy, ” he would say
nothing to her and would give her “threatening”
looks. (Id. at 193-95). Burke himself and at least
one other officer, whom Senanayake believed was friends with
Burke, changed their attitudes towards her as well.
(Senanayake Dep. at 194-95). Instead of being “super
friendly, ” they started giving her “a cold
hello.” (Id.). Senanayake felt
“alienated.” (Id. at 199).
claims that Pitts told her that “snitches get stitches
and end up in ditches.” (Senanayake Dep. at 177, 237).
Pitts then stated that an officer had “told on”
him at a prior law enforcement job. (Id.). When that
officer needed back-up, Pitts deliberately delayed in coming
to the scene and the officer “got beat up pretty
bad” in a fight. (Id. at 177-78). Pitts
laughed as he recounted this story to Senanayake.
to Pitts, he did say something to the effect of
“snitches get stitches” in Senanayake's
presence. He recalls having said it back when she was doing
ride-alongs (not after she talked to Burke) and in the
context of them “joking around” when they heard
on the radio an “old rap song” with lyrics
containing that phrase. (Pitts Dep. at 11-12). Pitts denies
that he told her a story about not coming to a fellow
officer's aid. (Id. at 12-13).
point Senanayake talked to Burke when they were walking to
their cars. (Senanayake Dep. at 199). She told him that
things had become “worse” because Pitts was
“being different.” (Id.). Burke told her
that Pitts would “come around.” (Id.).
When nothing seemed to change, Senanayake went to Burke's
office and “took a completely different approach”
to try to “smooth things over.” (Id. at
199-201). According to Senanayake, “I told him [Burke]
that it was fine . . . to just kind of let it go, that
he's [Pitts] - he's fine, he's okay - you know,
he's harmless. . . . I know that I tried to take a
completely different approach when the first approach did not
work.” (Id. at 201). Burke responded by asking
her if she was sure that everything was fine, to which she
said it was. (Id. at 201-02).
offers a different version of the matter. He admits that
Senanayake told him about Pitts saying that he wanted to have
her babies. (Burke Dep. at 33, 38). But she did not report
that Pitts had made any other comments to her. (Id.
at 33-34). Burke asked Senanayake what action she would like
him to take, and she said, “[N]othing, we're like
brother and sister, we joke like that all the time.”
(Id. at 34, 37). Burke took that statement to mean
that “she didn't care and she didn't want to do
anything about it.” (Id. at 38). They had no
further conversation about the comment and Burke said nothing
to Pitts. (Id. at 35, 39).
August 18, 2011, Burke had a conversation with Senanayake
about Pitts. It was precipitated by a text message that Burke
inadvertently received from her - he believed the text was
meant for Sheriff Davis - in which she complained,
“Burke is unfair.” (Burke Aff. at ¶ 9).
During the ensuing conversation, Senanayake stated that ...