Asst. town manager seeks dismissal from civil suit

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BRATTLEBORO — Attorneys for Brattleboro's assistant town manager are asking a court to dismiss him from a lawsuit filed by a former Brattleboro police officer.

According to documents filed with the U.S. District Court for the District of Vermont, Penny Witherbee, who was with the Brattleboro Police Department for 16 years, has not met her burden of proving Assistant Town Manager Patrick Moreland contributed to a hostile work environment nor that she suffered "an adverse employment decision" as a result of Moreland's alleged conduct in December 2013 and January 2014.

Witherbee, who filed the civil suit in July, resigned on Aug. 9. She is now an officer with the Winchester, N.H., Police Department.

"I cannot continue to work with Brattleboro Police Department because the department has made my working conditions so intolerable that I am compelled to resign," wrote Witherbee in her resignation letter. "The ongoing harassment on the basis of my gender has destroyed both my career and my health. It is obvious to me that I do not have any career prospects in the misogynistic culture that exists within BPD."

In her civil suit, Witherbee alleged she had received unwanted attention from Moreland, including him giving her a hug and kiss following a fatal hit and run, blowing her a kiss in a parking lot, calling her a "sweet heart," and rubbing her back during a training session.

According to court documents, Witherbee reported Moreland's alleged behavior to her superiors in a mediation session held in March 2014 during which "Moreland allegedly apologized and the claimed offending conduct stopped."

Moreland's attorney, Kaveh S. Shahi, of Cleary, Shahi & Aicher in Rutland, wrote that Witherbee has not alleged she "was terminated, demoted, or otherwise suffered a loss of pay, benefits or responsibilities ..." as a result of Moreland's alleged behavior or because she filed complaints against him.

Moreland "was not part of the police force and did not hold a police rank over (Witherbee) ..." noted Shahi. "The alleged incidents were isolated, separated in time, not sexual in nature and ceased once plaintiff spoke to Mr. Moreland. Plaintiff's allegations simply do not meet the requirements of severity or pervasiveness."

Federal courts have ruled to show severity or pervasiveness, a plaintiff must demonstrate examples of frequency and severity of conduct, whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and whether the conduct unreasonably interferes with the employee's job performance.

"(Witherbee) alleges a hostile work environment but that falls short of the required conduct ..." wrote Shahi.

In her initial filing, Witherbee alleged she also received unwanted sexual advances from Brattleboro Police Capt. Mark Carignan and was denied promotions due to her gender. She also claimed she was "subjected to continual and frequent pejorative insults on the basis of her gender" and was treated differently than other male officers. Witherbee also alleged she was on the receiving end of abusive language from both Carignan and Brattleboro Police Chief Michael "Gunny" Fitzgerald.

Witherbee is seeking "appropriate injunctive relief, compensatory and punitive damages" as well as costs and attorney fees associated with the lawsuit. Susan Edwards, of Wells, is representing her.

"(Witherbee) alleges no economic losses relative to defendant Moreland's averred conduct," wrote Shahi. "(E)ven if the allegations ... relating to her police superiors can be construed as asserting some element of lost income opportunity or benefits, there is no allegation that those supposed events starting more than a year after the encounters with Mr. Moreland are in any way related to his conduct. As such no claim for economic losses can be attributed to defendant Moreland."

Witherbee also failed to file her complaint in a timely manner and did not exhaust all her administrative remedies, wrote Shahi.

In accordance with Vermont Fair Employment Practices, wrote Shahi, "an aggrieved employee (must) file a charge with the (Equal Employment Opportunity Commission) within 180 days of the alleged discriminatory act, or file a charge with an equivalent state or city agency ... within 300 days of the alleged discriminatory act. ... Here, the Complaint does not allege when plaintiff filed a charge with EEOC or the Vermont Attorney General's Office to exhaust her remedies. The only allegation is that plaintiff '(w)as in the process of complaining to the EEOC' in June 2017."

Though Witherbee was issued a right-to-sue letter on April 19, 2018, wrote Shahi, she was still "well beyond the 180 days of the last alleged incident of harassment by Mr. Moreland in January 2014. ... In view of her allegation that in June 2017 she was in the process of filing a charge and the issuance of the right-to-sue letter in April 2018, it appears unlikely that plaintiff filed for administrative exhaustion in 2014. As such, the ... claim against Mr. Moreland is barred and should be dismissed."

Bob Audette can be contacted at 802-254-2311, ext. 151, or raudette@reformer.com.

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