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By Josh Brokaw
josh.brokaw@truthsayers.org

A lawsuit filed by an Ithaca Police Department officer alleging discrimination and retaliation against her because of her sexual orientation will move forward, after a federal judge issued a ruling in the case on Wednesday, March 21.

Sarah Crews, an IPD officer since 2007, filed a lawsuit in federal court in February 2017 against the City of Ithaca and former chief John Barber. The 28-page ruling, which you can view in full at the bottom of the page, was issued by U.S. district judge Mae D’Agostino in response to the city’s “motion to dismiss” Crews’ lawsuit.

In her decision issued Wednesday, D’Agostino summarized Crews’ argument like this:

“In essence, Plaintiff’s problem is that the Search and Jail Policies are blind to her sexual orientation. Thus, Plaintiff is arguing that IPD created an objectively hostile work environment by not treating her differently on the basis of her sexual orientation.”

The IPD’s Search and Jail policies were updated in 2011 to read that “whenever possible,” a female officer will transport female prisoners, and that only female officers should search female prisoners. This policy, the lawsuit argues, has put Crews into an “inordinate amount of compromising situations” with prisoners that male officers have avoided, including an incident in March 2011 when a female prisoner threatened to claim harassment against Crews and started masturbating in the officer’s presence. The lawsuit says that Crews made “dozens” of verbal complaints about the policy, before formally voicing her concern in writing in May 2015.

From that point on, the lawsuit argues that Crews was retaliated against for speaking out, first by being assigned to beats she did not prefer. Two notices of discipline issued to Crews since 2015 are also claimed to be retaliatory, stemming from incidents when Crews says she expressed frustration with the policy.

Here’s the gist of Crews’ complaint, taken from the lawsuit, which you can view in full at this link:

 


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Sarah Crews. Photo via GoFundMe page titled “Equality in Ithaca.”

Crews filed a complaint with the U.S. Equal Employment Opportunity Commission in August 2016, and was granted the right to sue by the EEOC in November 2016.

The city of Ithaca, represented by Earl T. Redding, of Roemer Wallens Gold & Mineaux, Albany, argued in their motion to dismiss that the claim of sexual orientation discrimination is not protected under Title VII of the  Civil Rights Act of 1964.

Since the Second Circuit Court of Appeals ruled on February 26 that Title VII does apply to sexual orientation. D’Agostino denied the motion to dismiss on those grounds.

“This is cutting edge law for the gay community,” Crews’ attorney, Edward Kopko, told TruthSayers. “This is predicated on some tectonic shifts in the law from the Second Circuit … They reversed some longstanding precedents and entered a decision in the Zarda case that was very significant”

To determine that there is a case of discrimination, the judge must see a “materially adverse change” in the terms of employment. A reprimand or excessive scrutiny aren’t enough in the case law to prove discrimination. D’Agostino ruled that the vacation time Crews lost was “a sufficient loss of benefits to establish an adverse action” under discrimination law.

D’Agostino dismissed the city’s argument that the rule prohibiting male officers from searching females is a “bona fide occupational qualification,” which would create an exception from Title VII if the rule is “reasonably necessary to the normal operation of that particular business.” The arguments made by the city in support of its Search & Jail Policies so far, D’Agostino wrote, “are unable to show that the policy was not discriminatory or that there was no reasonable alternative.”

The case will now enter its discovery stage, when the two sides identify potential witnesses and relevant documents to each other and the judge.

“We’re excited about this partial victory but we’re going to remain vigilant,” Kopko said. Kopko plans on appealing the parts of the city’s motion to dismiss that D’Agostino did grant, so that those portions of the complaint won’t considered in the final decision. Those include Crews’ initial complaint about beat assignments, and a notice of discipline from October 2015, because they are are “time barred” — outside of the time window that can be considered in the suit.

“The city could change this [policy] by one signature by the mayor,” Kopko said. “The whole purpose of the lawsuit is to get the city to change its policy. If the city won’t change its policy, we’re going to ask a federal judge to change its policy because a federal judge has the authority to do that.”

A request for comment to the City of Ithaca’s attorney office was not returned by end of business on Thursday, March 22.

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Sarah Crews v. City of Ithaca – D’Agostino ruling on motion to dismiss, March 21, 2018 (Text)

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Keep TruthSayers open as a public information service by making a donation today. Chotiwat Luenam was detained by Immigration and Customs Enforcement (ICE) in Ithaca, N.Y. on January 23, 2018, and released from the Batavia Federal Detention Facility after posting a $5,000 bond on February 21, 2018. The Tompkins County Immigrant Rights Coalition asked Chotiwat…Continue Reading “Afraid of Arrest By ICE? Here’s Advice From Someone Who Lived It”