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Senanayake v. Delaware County Board of Commissioners

United States District Court, S.D. Ohio, Eastern Division

June 22, 2017

Janine Senanayake, Plaintiff,
Delaware County Board of Commissioners, et al., Defendants.


          JAMES 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.

         This 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.

         I. Background

         A. 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.

         A 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 2009.

         Dash 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).

         Sheriff 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).

         Senanayake 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).

         B. Alleged Sexual Harassment by Deputy Pitts

         Deputy 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).

         Pitts 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).

         According 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).

         Senanayake 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).

         According 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 exchange. (Id.).

         Senanayake 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.”[1] (Id. at 176, 180, 187-88). Jackson said she would deal with the matter, but she never did. (Id. at 188).

         Senanayake 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).

         According 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.

         Though 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).

         Senanayake 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.

         Senanayake 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 177).

         C. Promotion to Deputy Sheriff and Perceived Favoritism from Sheriff Davis

         Lieutenant 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).

         In 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).

         Sheriff 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).

         At 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).

         By this 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)).

         In the 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).

         D. Additional Alleged Sexual Harassment by Pitts and the Incident at the County Fair

         Senanayake 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.[2] (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).

         In 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).

         E. Plaintiff's Discussions with Sergeant Burke and Alleged Retaliation

         Within 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.).

         Within 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).

         Senanayake 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. (Id.).

         According 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).

         At some 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).

         Burke 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).

         On 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 ...

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