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United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:19-cv-05590-MMB

SPECIAL

NEWSOME v. CITY OF PHILADELPHIA Assigned to: HONORABLE MICHAEL M. BAYLSON Cause: 29:201 Fair Labor Standards Act

Date Filed: 11/26/2019 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Employment Jurisdiction: Federal Question

Plaintiff

JANELLE NEWSOME INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED

represented by IAN M. BRYSON Derek Smith Law Group, PLLC 1835 Market STREET, Suite 2950 Philadelphia, PA 19103 (215) 391-4790 Email: ian@dereksmithlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant CITY OF PHILADELPHIA

represented by DANIEL R. UNTERBURGER CITY OF PHILADELPHIA LAW DEPT. 1515 ARCH STREET, 16TH FLOOR
PHILADELPHIA, PA 19102 215-683-5080 Email: daniel.unterburger@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/26/2019
11/26/2019 11/26/2019

#

Docket Text

1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number PPE207486.), filed by JANELLE NEWSOME.(bw, ) (Entered: 11/29/2019)

DEMAND for Trial by Jury by JANELLE NEWSOME. (bw, ) (Entered: 11/29/2019)

1 Summons Issued as to CITY OF PHILADELPHIA. Forwarded

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To: COUNSEL on 11/29/2019 (bw, ) (Entered: 11/29/2019)
2 WAIVER OF SERVICE Returned Executed by JANELLE NEWSOME. CITY OF PHILADELPHIA waiver sent on 12/3/2019, answer due 2/1/2020. (BRYSON, IAN) (Entered: 12/03/2019)
3 NOTICE by JANELLE NEWSOME Filing Consent Form to Join Dontaya Trippett as a Party Plaintiff (BRYSON, IAN) (Entered: 12/27/2019)
4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CITY OF PHILADELPHIA.Memorandum and Certificate of Service.(UNTERBURGER, DANIEL) (Entered: 02/03/2020)
5 RESPONSE in Opposition re 4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by JANELLE NEWSOME. (BRYSON, IAN) (Entered: 02/17/2020)
6 FIRST AMENDED COMPLAINT against CITY OF PHILADELPHIA, filed by JANELLE NEWSOME., JURY TRIAL DEMAND, EXHIBIT.(rf, ) (Entered: 02/18/2020)
7 ORDER THAT DEFENDANT'S 4 MOTION TO DISMISS FILED ON 2/3/20 IS DENIED AS MOOT. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 3/2/20.3/2/20 ENTERED & E-MAILED.(fdc) (Entered: 03/02/2020)
8 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CITY OF PHILADELPHIA.Memorandum and Certificate of Service.(UNTERBURGER, DANIEL) (Entered: 03/02/2020)
9 MOTION for Leave to File Supplemental Complaint filed by JANELLE NEWSOME.Memorandum, Certificate of Service. (BRYSON, IAN) (Entered: 03/16/2020)
10 RESPONSE in Opposition re 8 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by JANELLE NEWSOME. (BRYSON, IAN) (Entered: 03/16/2020)
11 ORDER THAT THE COURT HEREBY GRANTS PLAINTIFF'S 9 MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT (9). IT IS FURTHER ORDERED THAT, IN VIEW OF THE PUBLIC HEALTH CRISIS, ADDITIONAL BRIEFING WILL BE ALLOWED, THE SCHEDULE TO BE AGREED UPON BY COUNSEL, AND TO BE COMPLETED WITHIN 90 DAYS. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 3/25/20.3/25/20 ENTERED & E-MAILED.(fdc) (Entered: 03/25/2020)

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12 ORDER THAT ANY FURTHER BRIEFING EITHER PARTY WISHES TO FILE REGARDING THE PENDING MOTION TO DISMISS THE FIRST AMENDED COMPLAINT AND THE SUPPLEMENTAL COMPLAINT SHALL BE FILED BY 8/21/20; ETC.. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 7/30/20. 7/30/20 ENTERED AND E-MAILED. (JL ) (Entered: 07/30/2020)
13 Supplemental MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CITY OF PHILADELPHIA.memorandum and Certificate of Service. (Attachments: # 1 Exhibit A)(UNTERBURGER, DANIEL) (Entered: 08/21/2020)
14 NOTICE of Hearing on Motion 13 Supplemental MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 8 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : MOTION VIDEO HEARING SET FOR 11/4/2020 02:00 PM BEFORE HONORABLE MICHAEL M. BAYLSON. INSTRUCTIONS TO JOIN VIDEO HEARING ON NOTICE AND ALSO BEING EMAILED TO COUNSEL.(lds, ) (Entered: 10/13/2020)
15 AMENDED NOTICE (new time) of Hearing on Motion 13 Supplemental MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 8 Second MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : MOTION VIDEO HEARING SET FOR 11/4/2020 11:00 AM BEFORE HONORABLE MICHAEL M. BAYLSON. INSTRUCTIONS FOR PARTICIPATING IN THE VIDEO HEARING ARE DETAILED IN THE NOTICE AND ALSO EMAILED TO COUNSEL PREVIOUSLY.(lds, ) (Entered: 10/14/2020)
16 Minute Entry for proceedings held before HONORABLE MICHAEL M. BAYLSON. Hearing Re: Motion to Dismiss (via Cisco video meeting) held on 11/4/20. (fdc) (Entered: 11/04/2020)
17 MEMORANDUM AND OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 11/12/20. 11/12/20 ENTERED & E-MAILED.(fdc) (Entered: 11/12/2020)
18 MEMORANDUM AND ORDER THAT THE COURT GRANTS THE MOTION TO DISMISS WITHOUT PREJUDICE AS TO COUNTS II(FLSA RETALIATION), IV(TITLE VII HOSTILE WORK ENVIRONMENT), V(TITLE VII RETALIATION), VI(SEC.1983 DISPARATE TREATMENT), VII(SEC. 1983 HOSTILE WORK ENVIRONMENT), VIII(FIRST AMENDMENT

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RETALIATION); AND DENIES THE MOTION TO DISMISS AS TO COUNTS I(FLSA VIOLATIONS), AND III(TITLE VII DISPARATE TREATMENT). IT IS FURTHER ORDERED THAT PLAINTIFF MAY FILE A SECOND AMENDED COMPLAINT WITHIN THIRTY (30) DAYS. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 11/12/20. 11/12/20 ENTERED & E-MAILED.(fdc) (Entered: 11/12/2020)
19 AMENDED COMPLAINT (Second) against CITY OF PHILADELPHIA, filed by JANELLE NEWSOME.(BRYSON, IAN) (Entered: 12/12/2020)
20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CITY OF PHILADELPHIA.Memorandum and Certificate of Service.(UNTERBURGER, DANIEL) (Entered: 12/24/2020)
21 RESPONSE in Opposition re 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by JANELLE NEWSOME. (Attachments: # 1 Supplement Certification of Counsel)(BRYSON, IAN) (Entered: 01/07/2021)

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DEREK SMITH LAW GROUP, PLLC IAN M. BRYSON, ESQUIRE Attorney ID No. 321359 1835 Market Street, Suite 2950 Philadelphia, PA 19103 (215) 391-4790 ian@dereksmithlaw.com Attorneys for Plaintiff and the Proposed Class

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

________________________________________________

:

JANELLE NEWSOME,

: Civil Action No.

individually and on behalf of others similarly situated, :

: COLLECTIVE ACTION

Plaintiff,

: COMPLAINT FOR

: DECLARATORY JUDGMENT,

v.

: INJUNCTIVE RELIEF and

: DAMAGES

CITY OF PHILADELPHIA,

:

:

Defendant.

:

________________________________________________:

NATURE OF THE ACTION 1. Plaintiff Janelle Newsome brings this suit individually and on behalf of all others

similarly situated as a collective action seeking all available relief under the Fair Labor

Standards Act of 1938, 29 U.S.C. §§ 201 et seq. (“FLSA”) contending that the

Philadelphia Police Department has systematically and willfully failed to provide nursing

female police officers with “reasonable break time to express breast milk for their nursing

children for 1 year after the child’s birth each time such employee has need to express the

milk,” and has further failed to provide “a place, other than a bathroom, that is shielded

from view and free from intrusion from coworkers and the public, which may be used by

employees to express breast milk.” 29 U.S.C. § 207(r)(1)(A) and (B).

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2. Plaintiff also brings this action for personal relief from sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (“Section 1983”).
3. Plaintiff seeks injunctive and declaratory relief, compensatory damages, punitive damages, liquidated damages, statutory penalties, reasonable attorneys’ fees, litigation costs and pre- and post-judgment interest as remedies for Defendant’s violations of her rights. PARTIES
4. Plaintiff Janelle Newsome (“Ms. Newsome”) is an adult individual resident of Philadelphia County and a citizen of the Commonwealth of Pennsylvania. Pursuant to Section 216(b) of the FLSA, Plaintiff has consented in writing to be a party in this action. Her executed Consent to Sue form is attached hereto as Exhibit “A.”
5. Defendant City of Philadelphia (“the City”) is a municipality of the Commonwealth of Pennsylvania. The City owns, operates, manages, directs and controls the Philadelphia Police Department (“the PPD”), whose agents, servants and employees at all relevant times were acting within the course and scope of their employment under color of state law and operating pursuant to official policies, customs or practices of the City and the PPD.
6. Plaintiff was an “employee” and Defendant was an “employer” covered by the FLSA and Title VII and was required to comply with the mandates therein.
7. Defendant systematically and willfully failed to satisfy the requirements of the FLSA, Title VII and Section 1983.
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EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER TITLE VII 8. Ms. Newsome timely filed charges of discrimination with the U.S. Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”) alleging violations of Title VII the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963 (“PHRA”), and the Philadelphia Fair Practices Ordinance, Philadelphia Code §§ 9-1101 et seq. (“PFPO”). 9. EEOC issued Ms. Newsome a Notice of Right to Sue Within 90 Days. Ms. Newsome has timely filed this action and has complied with all administrative prerequisites to bring this lawsuit. 10. Ms. Newsome’s PHRA and PFPO claims are still pending before PHRC because less than one year has elapsed since PHRC assumed jurisdiction over her charges. After one year, Ms. Newsome will seek leave to amend this complaint to assert her PHRA and PFPO claims.
JURISDICTION AND VENUE 11. This Court has jurisdiction over this lawsuit pursuant to 28 U.S.C § 1331 because it
involves questions of federal law under Title VII, Section 1983 and the FLSA. 12. Venue in this Court is proper under 28 U.S.C. § 1391(b) because a substantial part of the
acts or omissions giving rise to the claims alleged herein occurred within this judicial district, and Defendant is subject to personal jurisdiction here. 13. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202.
FLSA COLLECTIVE ACTION ALLEGATIONS 14. The PPD employs over 6300 sworn members, approximately 35% of which are women.
There are eleven different ranks in the PPD in the following order, beginning at the entry 3

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level position of Police Officer and ending with Police Commissioner: (1) Police Officer;
(2) Detective; (3) Corporal; (4) Sergeant; (5) Lieutenant; (6) Captain; (7) Staff Inspector;
(8) Inspector; (9) Chief Inspector; (10) Deputy Commissioner; and (11) Commissioner.
The City’s Office of Human Resources provides the following job class specification for
Police Officer:
GENERAL DEFINITION
This is general duty police work on an assigned shift involving the protection of life and property, enforcement of laws, and investigation of crimes. Work is performed under the supervision of a police officer of higher rank. The employee has a controlling impact on the prevention of crime within an assigned area. Work requires regular exposure to uncontrolled and/or unpredictable conditions and the frequent exercise of moderate physical effort. The essential functions and tasks required for the position of police officer, include, but are not limited to, qualification and use of firearms, patrolling and apprehension of suspects. Employees in this class must also comply with Commonwealth municipal police officer certification requirements
ALLOCATING FACTORS
Positions in this class must be able to perform the essential and physical functions of the job.
TYPICAL EXAMPLES OF WORK
Patrols a designated area of the city, on foot, bicycle, segway or horseback, or in a car, motorcycle, or police boat to prevent and discover the commission of crime and to enforce traffic and parking regulations; answers calls and complaints, taking the necessary police action.
Takes proper police action at scene of crime, administers first aid, gathers evidence, locates witnesses and makes arrest; appears in court to present evidence and testify against persons accused of crimes.
Investigates persons suspected of being engaged in gambling, illegal sale of liquors, or other vice activities; checks the operation of taverns, poolrooms, dance halls, clubs, and similar establishments for compliance with laws and ordinances.
Ascertains validity of information or secures evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants, and witnesses, takes information or secures
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evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants and witnesses to obtain information about crimes; reports automobile accidents, interviews witnesses, takes information, and makes detailed reports.
Investigates complaints concerning juveniles; discusses the case with complainant, juvenile, parents and others who may be able to aid in the case; investigates crimes by and against juveniles; testifies in court concerning case, visits neighborhood boys’ clubs and recreation centers, counseling leaders on juvenile problems.
Writes detailed reports of automobile accidents in cases where personal injuries or property damage is apparent.
Works with community residents, business owners and other City employees to solve problems of crime and disorder.
Performs all duties and responsibilities at the highest level of personal and professional ethics.
Uses computer systems to identify crime patterns, analyzes the nature of crime and disorders, problems and obtains information relevant to crime control and prevention.
May serve in the district operations office to perform necessary clerical procedures connected with police work.
Performs related work as required.
REQUIRED KNOWLEDGE, SKILLS AND ABILITIES
KNOWLEDGE OF:
• the use, care and safe handling of firearms and other equipment used in the performance of essential tasks;
• the laws controlling, and the procedures, practices and techniques necessary to police patrol operations;
• the laws, codes, statutes and regulations concerning criminal activity, especially when they apply to law enforcement operations;
• the criminal justice system as it applies to law enforcement operations; • the techniques, practice and procedures necessary to the effective
interaction with the general public, victims, suspects, and officers of other agencies and municipalities; and • duty manuals, departmental organizations, administrative direction and applicable City ordinances. SKILL IN:
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• the use and care of firearms and other equipment used in the performance of essential tasks
ABILITY TO:
• cope with situations firmly, courteously, tactfully and with respect for the rights of others;
• analyze situations quickly and objectively, and to determine a proper course of action to be taken;
• understand and carry out oral and written instructions; • write and speak effectively; • learn clerical procedures connected with police work; • make arrests; • take necessary police action to prevent the commission of a crime, including
use of a firearm where needed; • patrol streets on foot; • respond to emergency situations; • use firearms and other weapons as needed; • operate equipment in the performance of essential tasks; • perform the essential and physical functions of the job; • identify, analyze and respond to crime and disorder problems; and • use computer systems to obtain necessary information in the performance
of the position.
MINIMUM ACCEPTABLE TRAINING AND EXPERIENCE
For employees hired from eligible lists for Police Officer Recruit initially established before 2012:
EDUCATION: Education equivalent to standard high school.
AND
TRAINING: Recent successful completion of training as a Police Officer Recruit at the City of Philadelphia Police Academy.
OR
CERTIFICATION: Possession of Pennsylvania Municipal Police Officers’ Certification from the Pennsylvania Municipal Police Officers Education and Training Commission prior to appointment and during tenure of employment as a Police Officer 1.
For employees hired from eligible lists for Police Officer Recruit initially established during or after 2012 or from Police Officer 1 eligible lists initially established during or after 2011:
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Option 1
TRAINING: Recent successful completion of training as a Police Officer Recruit at the City of Philadelphia Police Academy.
OR
Option 2
EDUCATION: Education equivalent to completion of a standard high school.
AND
EXPERIENCE: One year of full time employment as a commonwealth or state certified Law Enforcement Officer which has been within the three year period immediately prior to the thirtieth (30) day after the last date for filing applications for the examination for this class.
AND
CERTIFICATION: Possession of a commonwealth or state Law Enforcement Officers’ Certification.
PHYSICAL AND MEDICAL REQUIREMENTS
Ability to meet the physical and medical standards approved for this class.
Age—Must have reached Nineteenth (19th) Birthday as of the date of appointment.
LICENSES, REGISTRATIONS AND/OR CERTIFICATES
Possession of Pennsylvania Municipal Police Officers’ Certification from the Pennsylvania Municipal Police Officers Education and Training Commission prior to appointment and during tenure of employment as a Police Officer 1.
Initial and annual qualification on a police firearms course, by a certified police firearms instructor, with any firearms, shotguns, rifles authorized for use including personal weapons carried in lieu of issued weapons or as a second weapon.
Possession of a valid proper class motor vehicle operator's license as issued by the Commonwealth of Pennsylvania within 60 days of establishing Pennsylvania residency and during tenure of employment as a Police Officer 1. Preferred License
Possession of a valid proper class motor vehicle operator's license from any state at least three years prior to appointment as a Police Officer 1.
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See City of Philadelphia Office of Human Resources Personnel Job Class Specifications, Police Officer 1, https://www.phila.gov/personnel/specs/6A02.htm
15. Pursuant to 29 U.S.C. §§ 216(b) and 207(r) of the FLSA, Ms. Newsome brings this action individually and on behalf of all other similarly situated female Police Officers employed by the PPD during the past three years who were denied their rights under the FLSA’s “Break Time for Nursing Mothers” provision, which requires employers to provide (1) “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk”; and (2) “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(A) and (B).
16. The members of the putative class are hereinafter referred to as “Collective Class Plaintiffs.”
17. Plaintiff estimates that there are in excess of 500 other similarly situated Collective Class Plaintiffs who are working or worked for the PPD and are or were unlawfully denied their rights under the FLSA’s Break Time for Nursing Mothers provision, 29 U.S.C. § 207(r). The precise number of employees can be easily ascertained by Defendant. These employees can be identified and located using Defendant’s payroll and personnel records. Potential Collective Class Plaintiffs may be informed of the pendency of this Collective Action by direct mail and/or publication.
18. Pursuant to 29 U.S.C. § 216(b), this action is properly maintained as a collective action because all class members are similarly situated. Plaintiff and other similarly situated female Police Officers (1) were similarly denied reasonable break time to express breast milk for their nursing children for 1 year after birth each time they needed to, and also 8

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denied a private place, other than a bathroom, to do so; (2) had the same or substantially similar job classifications and duties; and (3) were subject to the same uniform policies, business practices, payroll practices, and operating procedures. 19. Further, Defendant’s willful policies and practices, which are discussed more fully below, whereby Defendant denied Plaintiff and Collective Class Plaintiffs their rights under the FLSA’s Break Time for Nursing Mothers provision, have affected Plaintiff and Collective Class Plaintiffs in the same fashion. 20. In violation of the FLSA, Defendant failed to provide Plaintiff and Collective Class Plaintiffs “reasonable break time to express breast milk for [their] nursing child[ren] for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A) and (B). 21. In violation of the FLSA, Defendant also failed to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by [Plaintiff and Collective Class Plaintiffs] to express breast milk.” 29 U.S.C. § 207(r)(1)(B). 22. This policy and practice is unequivocal evidence of Defendant’s systematic, willful and improper failure to follow the provisions of the FLSA. 23. Plaintiff will request the Court to authorize notice to all current and former similarly situated female Police Officers employed by the PPD in the last three years to inform them of the pendency of this action and their right to “opt in” to this lawsuit pursuant to 29 U.S.C. § 216(b) for the purpose of seeking actual damages, liquidated damages, attorneys’ fees, litigation costs, declaratory relief, employment consistent with the FLSA, and all other relief available.
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FACTUAL BACKGROUND 24. Plaintiff repeats every allegation made in the above paragraphs of this complaint. 25. On December 22, 2014, Ms. Newsome started working for the PPD as a Police Officer
assigned to the 18th District. 26. In July 2018, Ms. Newsome gave birth to her child. 27. In January 2019, Ms. Newsome returned to work from leave and was detailed to the
PPD’s Neighborhood Services Unit (“NSU”) on restricted duty. She was still nursing her infant child and expected to do so until her child reached age 1 in July 2019. 28. Upon returning to work, Ms. Newsome experienced ongoing pregnancy discrimination regarding her need to express milk at work. 29. Defendant denied Ms. Newsome reasonable break time to express breast milk for her nursing child for 1 year after the child’s birth each time she had the need to express the milk. 30. Defendant also denied Ms. Newsome a private place, other than a bathroom, that was shielded from view and free from intrusion from coworkers and the public that she could use to express breast milk. 31. The PPD has no policy or directive in place to provide basic accommodations for breastfeeding mothers like Ms. Newsome. 32. The PPD does not provide accommodations for nursing mothers like Ms. Newsome—it does not provide time for women to express milk, nor does it provide private space that is not a bathroom each time women need to pump. 33. As a result, women employed by the PPD are kept unaware and deprived of their statutory civil rights.
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34. When Ms. Newsome arrived to NSU, she informed her supervisor, Sergeant Herbert Gibbons, that she would need to pump at work and that she would “try to only do it once per day.” Because the PPD does not provide accommodations for nursing mothers, Sergeant Gibbons failed to apprise Ms. Newsome of her right to take time to express milk, nor did he apprise her of her right to a private space (that is not a bathroom) each time she needed to pump. Rather, Sergeant Gibbons stated, “We’ll figure something out,” and at no time thereafter did Sergeant Gibbons provide accommodations for Ms. Newsome.
35. As a result, Ms. Newsome did not have a private, sanitary space that was regularly available and free from interruptions from coworkers; and she was forced to pump at irregular times or not at all.
36. For example, Ms. Newsome attempted to pump in an office that was frequently used by the building’s all-male tech crew, who often told her “we’re going to be in here for a while,” forcing her to pump in the restroom or not pump at all. Occasionally, when the room was vacant, Ms. Newsome was often interrupted by the all-male tech crew who would knock on the door and ask, “When are you going to be done” and wait outside until she came out.
37. On another occasion Sergeant Gibbons instructed Ms. Newsome and another nursing mother—Officer Jennifer Allen—to “pump in Officer John Whipple’s office.” The same day, or shortly thereafter, Ms. Newsome and Officer Allen were asked by another police officer, Officer Darden, “Were you notified that you had to start pumping in Mary’s (a civilian coworker) office?” Ms. Newsome and Officer Allen had not been notified of this
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change. Officer Darden further stated, “You should pump at the same time in the same room.” 38. Upon hearing this, Ms. Newsome became concerned that her supervisors and coworkers did not support her need to pump at work and that her ability to do so was in jeopardy. Ms. Newsome and other nursing mothers rely on a positive, accepting attitude from supervisors and coworkers to feel confident in the ability to continue working while breastfeeding. Ms. Newsome and other nursing mothers also rely on consistent availability of a private space to pump. These accommodations are not provided by the PPD. 39. On another occasion, another police officer, Officer Martin, told Ms. Newsome and Officer Allen that “people need to get into the office you’re pumping in during the time that you pump,” and directed them to “pump in Mary’s office from now on.” 40. On another occasion, Sergeant Gibbons called Ms. Newsome and Officer Allen into his office and stated, “You are to put the sign (a sign they hung on the door while they were pumping to notify others the room was in use) back in my office after each use.” Sergeant Gibbons further stated that he “doesn’t want to hear Mary making a big fuss about the sign,” and that he “wants to avoid hearing her mouth.” This arrangement required Ms. Newsome and Officer Allen to retrieve the privacy sign from an office occupied by three male officers each and every time they needed to pump and return the sign to the three male officers each and every time they were finished. Ms. Newsome and Officer Allen found this arrangement to be extremely demeaning. 41. On another occasion, Ms. Newsome, Officer Allen and Officer Tanya Richardson approached Sergeant Gibbons about their coworkers’ frequent interruptions and negative
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comments regarding their need to express milk at work. They requested that Sergeant Gibbons address the issue with their coworkers. In response, Sergeant Gibbons stated, “I won’t address it with anyone because I would be kicked out of the unit.” He further stated, “Anytime I have spoken up before I was backstabbed and given 18’s (disciplined).” These frequent negative interactions regarding Ms. Newsome’s and Officer Allen’s rights caused both women to cry at work on several occasions. 42. On another occasion, Ms. Newsome told Sergeant Gibbons, “I do not feel comfortable with the procedure of getting the privacy sign from you because I have to walk into an office with three male officers, ask them for the sign, and then walk back into the same office to return it to them. It makes me feel uncomfortable.” Officer Allen agreed. 43. Later that day, Sergeant Gibbons called Ms. Newsome and Officer Allen into the break room and stated, “Effective immediately you will pump in Mary’s office, a permanent sign will be made that will hang on the door, and you will each have keys to the office. You can pump whenever you want to.” This conversation occurred in late-April 2019, approximately 4 months after Ms. Newsome had returned to work from leave. 44. Ms. Newsome and Officer Allen asked Sergeant Gibbons “if Mary had been notified that we were to pump in her office,” and Sergeant Gibbons said “yes.” 45. However, when Ms. Newsome and Officer Allen attempted to use Mary’s office, Mary stated, “I have work to do, you have to use another office.” 46. Officer Allen informed Sergeant Gibbons that “Mary said we can’t use her office,” and Sergeant Gibbons responded, “she has to,” but took no further action to remedy the situation. He did not provide Ms. Newsome and Officer Allen with keys or a permanent
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sign as he had promised. He did not instruct Mary to allow the women to pump in her office. 47. Later, Ms. Newsome and Officer Allen again complained to Sergeant Gibbons that they had not been given the basic accommodations that he had promised . Ms. Newsome stated, “You said provisions would be made for us.” In response, Sergeant Gibbons said, “By law, I only have to give you 10 minutes.” Ms. Newsome responded, “10 minutes is not long enough to begin the flow of milk—it could take me up to 30 minutes.” Sergeant Gibbons changed the subject and took no further action to accommodate her needs. 48. Around April 29, 2019, Ms. Newsome and Officer Allen were instructed to pump in the building’s lunch room during lunch hour. That day, while Ms. Newsome was attempting to use the lunch room to pump, coworkers started gathering outside, knocking on the door and asking, “What’s going on in there?” 49. When Ms. Newsome opened the door to the lunch room, one employee who had been waiting outside said “FINALLY” and groaned before entering the room. The employee then asked Ms. Newsome, “Can I come in when you’re pumping because I’m a woman?” 50. The PPD is responsible for alerting employees about the employer’s worksite lactation program (which the PPD does not have) and for negotiating policies and practices to help facilitate each employee’s infant feeding goals. Defendant failed to meet these requirements. 51. The PPD is responsible for knowing exactly how to support employees like Ms. Newsome, including educating all staff about the importance of respecting a coworker’s privacy while pumping and providing coverage during lactation breaks. Defendant failed to meet these requirements.
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52. The PPD is responsible for ensuring that all employees will assist in providing a positive atmosphere of support for breastfeeding employees like Ms. Newsome. Defendant failed to meet these requirements.
53. The PPD’s ongoing failure to provide Ms. Newsome with consistent, private and sanitary lactation space caused her extreme anxiety and uncertainty about her ability to continue breastfeeding her child. Breastfeeding and working takes a lot of time, coordination and dedication from a mother. A lactation space is necessary because in order to begin the flow of milk, mothers must be able to sit down and relax, and not be stressed. Mothers such as Ms. Newsome who are placed in an open or uncomfortable space, or who are worried about hostility from coworkers, may not be able to pump milk or may not be able to pump milk as quickly.
54. As a result of the PPD’s failure to designate private, sanitary rooms for nursing employees like Ms. Newsome to express breast milk at work, Ms. Newsome was forced to stop pumping at work altogether. For the next several months she could only pump at nighttime when she arrived home from work.
55. On several occasions, Ms. Newsome was forced to take sick leave to pump at home. 56. Officer Allen also was forced to stop pumping at work and took leave to pump at home. 57. Section 4207 of the Patient Protection and Affordable Care Act, which amended Section
7 of the FLSA, 29 U.S.C. § 207, requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A). The law further requires employers to provide “a place, other than a bathroom, that is
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shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(B). 58. The FLSA and the “Break Time for Nursing Mothers” provision cover all public agency employees of a State, a political subdivision of a State, or an interstate government agency. 29 U.S.C. § 203(s)(1)(C). Federal law does not preempt “a State law that provides greater protections to employees than the protections provided for under [the federal law].” 29 U.S.C. 207(r)(4). 59. The Philadelphia Fair Practices Ordinance (the “PFPO”) expands on the federal protections under the FLSA. Under the PFPO, “it shall be an unlawful employment practice to deny or interfere with the employment opportunities of an individual based upon . . . her . . . sex (including pregnancy, childbirth, or a related medical condition), . . . including, but not limited to . . . fail[ing] to reasonably accommodate an individual’s need to express breast milk. Reasonable accommodations include providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk and providing a private, sanitary space that is not a bathroom where an employee can express breast milk . . .” Phila. Code § 9-1103(1)(m)(i). 60. The PPD failed to provide these basic accommodations to Plaintiff and Collective Class Plaintiffs. None of the PPD’s 21 police districts provide accommodations for nursing mothers: women are forced to express milk in unsanitary bathrooms that are often extremely hot or extremely cold and infested with roaches and mice. 61. Plaintiff’s and Collective Class Plaintiffs’ job duties are the same and generally include: patrolling designated areas of the city on foot, bicycle, segway, horseback, car, motorcycle, or police boat to prevent and discover the commission of crimes and traffic
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and parking violations; answering calls and complaints; and taking the necessary police action (in addition to other duties specified in paragraph 14 above). 62. Throughout Plaintiff’s and Collective Class Plaintiffs’ employment with Defendant, Defendant failed to provide Plaintiff and Collective Class Plaintiffs “reasonable break time to express breast milk for [their] nursing child[ren] for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A) and (B). 63. Moreover, throughout Plaintiff’s and Collective Class Plaintiffs’ employment with Defendant, Defendant failed to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by [Plaintiff and Collective Class Plaintiffs] to express breast milk.” 29 U.S.C. § 207(r)(1)(B). 64. Violations of Plaintiff’s and Collective Class Plaintiffs’ federally protected rights were the result of official policy: the City, the PPD, and their policymaking officials (1) directed that the violations of occur; (2) authorized the violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed policies to prevent the violations. 65. Plaintiff and Collective Class Plaintiffs were and are, within the meaning of the FLSA, non-exempt employees of Defendant and therefore entitled to the statutorily mandated protections of the FLSA’s Break Time for Nursing Mothers provision. 66. Plaintiff and Collective Class Plaintiffs were “employees” of Defendant as defined by the FLSA.
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67. As a result of Defendant’s violations of the law, Plaintiff and Collective Class Plaintiffs were subjected to employment inconsistent with the FLSA.
68. Defendant threatened to discipline any employee who questioned its unlawful practices. 69. As a result, Plaintiff and Collective Class Plaintiffs have suffered damages.
COUNT I VIOLATIONS OF FLSA PROTECTIONS FOR NURSING MOTHERS
29 U.S.C. § 207(r) Plaintiff and Collective Class Plaintiffs v. Defendant City of Philadelphia 70. Plaintiff repeats every allegation made in the above paragraphs of this complaint. 71. Section 4207 of the Patient Protection and Affordable Care Act (“ACA”), which amended Section 7 of the FLSA, 29 U.S.C. § 207, requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A). 72. The law further requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(B). 73. The FLSA and the “Break Time for Nursing Mothers” provision cover all public agency employees of a State, a political subdivision of a State, or an interstate government agency. 29 U.S.C. § 203(s)(1)(C). 74. The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee, including individual supervisors and management officials. 29 U.S.C. § 203(d). 75. Defendant violated Plaintiff and Collective Class Plaintiffs’ rights under the FLSA by (1) failing to provide reasonable break time for Plaintiff and Collective Class Plaintiffs to
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“express breast milk for her nursing child for 1 year after the child’s birth each time she had a need to express the milk”; and (2) failing to provide Plaintiff and Collective Class Plaintiffs “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used to express breast milk.” 76. The foregoing actions, policies and practices of Defendant violate the FLSA. 77. Defendant’s actions were willful, in bad faith and in reckless disregard of clearly applicable FLSA provisions. 78. Defendant is liable to Plaintiff and Collective Class Plaintiffs for actual damages, liquidated damages and other relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable attorneys’ fees, costs and expenses.
WHEREFORE, Plaintiff prays for the following relief on behalf of herself and Collective Class Plaintiffs:
a. An Order from this Court permitting this litigation to proceed as a collective action pursuant to 29 U.S.C. § 216(b);
b. An Order from this Court ordering Defendant to file with this Court and furnish to the undersigned counsel a list of all names and addresses of all female Police Officers who have worked for Defendant during the preceding three years, and authorizing Plaintiff’s counsel to issue a notice at the earliest possible time to these individuals, informing them that this action has been filed, of the nature of the action, and of their right to opt in to this lawsuit if they worked for Defendant during the liability period, but were denied their rights under the Break Time for Nursing Mothers provision of the FLSA;
c. Adjudicating and declaring that Defendant’s conduct as set forth herein and above is in violation of the FLSA;
d. Adjudicating and declaring that Defendant violated the FLSA by failing to provide reasonable break time and private, sanitary lactation space for nursing mothers;
e. Awarding Plaintiff and Collective Class Plaintiffs damages in an amount consistent with the FLSA;
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f. Awarding Plaintiff and Collective Class Plaintiffs liquidated damages in accordance with the FLSA;
g. Awarding Plaintiff reasonable attorneys’ fees and all costs of this action, to be paid by Defendant, in accordance with the FLSA;
h. Awarding pre- and post-judgment interest and court costs as further allowed by law; i. Granting Plaintiff and Collective Class Plaintiffs leave to add additional plaintiffs by
motion, the filing of written opt in consent forms, or any other method approved by the Court; and j. For all additional general and equitable relief to which Plaintiff and Collective Class Plaintiffs are entitled.
COUNT II FLSA RETALIATION
29 U.S.C. § 215 Plaintiff and Collective Class Plaintiffs v. Defendant City of Philadelphia 79. Plaintiff repeats every allegation made in the above paragraphs of this complaint. 80. The FLSA prohibits retaliation by employers against employees for asserting their rights under the Act. 29 U.S.C. § 215(a)(3). 81. Defendant violated the FLSA’s anti-relation provision when it took materially adverse employment actions against Plaintiff and Collective Class Plaintiffs for asserting their rights under the Break Time for Nursing Mothers law. 82. As a result of Defendant’s violations of the FLSA, Plaintiff and Collective Class Plaintiffs have suffered damages, including, but not limited to: loss of employment, diminishment of career opportunities, past and future lost wages, reputational harm, pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress, and other harm, both tangible and intangible. 83. The foregoing actions, policies and practices of Defendant violate the FLSA. 84. Defendant’s actions were willful, in bad faith and in reckless disregard of clearly applicable FLSA provisions.
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85. Defendant is liable to Plaintiff and Collective Class Plaintiffs for actual damages,
liquidated damages and other relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable
attorneys’ fees, costs and expenses.
WHEREFORE, Plaintiff prays for the following relief on behalf of herself and Collective
Class Plaintiffs:
a. An Order from this Court permitting this litigation to proceed as a collective action pursuant to 29 U.S.C. § 216(b);
b. An Order from this Court ordering Defendant to file with this Court and furnish to the undersigned counsel a list of all names and addresses of all female Police Officers who have worked for Defendant during the preceding three years, and authorizing Plaintiff’s counsel to issue a notice at the earliest possible time to these individuals, informing them that this action has been filed, of the nature of the action, and of their right to opt in to this lawsuit if they worked for Defendant during the liability period, but were denied their rights under the Break Time for Nursing Mothers provision of the FLSA;
c. Adjudicating and declaring that Defendant’s conduct as set forth herein and above is in violation of the FLSA;
d. Adjudicating and declaring that Defendant violated the FLSA by retaliating against employees who asserted their rights to reasonable break time and private, sanitary lactation space;
e. Awarding Plaintiff and Collective Class Plaintiffs damages in an amount consistent with the FLSA;
f. Awarding Plaintiff and Collective Class Plaintiffs liquidated damages in accordance with the FLSA;
g. Awarding Plaintiff reasonable attorneys’ fees and all costs of this action, to be paid by Defendant, in accordance with the FLSA;
h. Awarding pre- and post-judgment interest and court costs as further allowed by law;
i. Granting Plaintiff and Collective Class Plaintiffs leave to add additional plaintiffs by motion, the filing of written opt in consent forms, or any other method approved by the Court; and
j. For all additional general and equitable relief to which Plaintiff and Collective Class Plaintiffs are entitled.
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COUNT III TITLE VII DISPARATE TREATMENT
42 U.S.C. § 2000e-2 Plaintiff Janelle Newsome v. Defendant City of Philadelphia 86. Plaintiff repeats every allegation made in the above paragraphs of this complaint. 87. Title VII provides, in relevant part, that “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). 88. Title VII further provides that “it shall be an unlawful employment practice for any employer . . . controlling . . . training or retraining, including on-the-job training programs to discriminate against any individual because of [her] race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide . . . training.” 42 U.S.C. § 2000e-2(d). 89. In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076, which added new language to Title VII’s definitions subsection to specify that Title VII’s “ter[m] ‘because of sex’ . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions.; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k); Young v. United Parcel Serv., Inc., 135 S. Ct. 1344-45 (2015) (explaining “that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act.”). 90. Title VII further provides that “un unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a
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motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). 91. The City engaged in unlawful employment practices prohibited by Title VII by intentionally discriminating against Plaintiff with respect to her compensation, terms, conditions, training and privileges of employment because of her sex and pregnancy. 92. The City subjected Plaintiff to adverse tangible employment actions—defined as significant changes in Plaintiff’s employment status, discipline, denial of training, failure to promote, reassignment with significantly different job responsibilities, and decisions causing changes in significant changes in her employment benefits. 93. Plaintiff’s protected characteristics (sex and pregnancy) played a determinative factor in the City’s decisions. 94. The City cannot show any legitimate nondiscriminatory reasons for its employment practices and any reasons proffered by the City for its actions against Plaintiff are pretextual and can readily be disbelieved. 95. Alternatively, Plaintiff’s protected status played a motivating part in the City’s decisions even if other factors may also have motivated its actions against Plaintiff. 96. The City acted with the intent to discriminate. 97. The City acted upon a continuing course of conduct. 98. As a result of the City’s violations of Title VII, Plaintiff has suffered damages, including, but not limited to: past and future lost wages, pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress, reputational harm, diminishment of career opportunities, and other harm, both tangible and intangible.
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WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that the City’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT IV TITLE VII HOSTILE WORK ENVIRONMENT
42 U.S.C. § 2000e-2 Plaintiff Janelle Newsome v. Defendant City of Philadelphia
99. Plaintiff repeats every allegation made in the above paragraphs of this complaint.

100.

Title VII also prohibits hostile work environment harassment, defined as

unwanted comments or conduct regarding the plaintiff’s protected characteristics that

have the purpose or effect of unreasonably interfering with the terms and conditions of

the plaintiff’s employment. Harris v. Forklift Systems, 510 U.S. 17, 21 (1993).

101.

An employer is strictly liable for supervisor harassment that “culminates in a

tangible employment action, such as discharge, demotion, or undesirable reassignment.”

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

102.

Respondeat superior liability for the acts of non-supervisory employees exists

where “the defendant knew or should have known of the harassment and failed to take

prompt remedial action. Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir.

1990).

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103.

Employer liability for co-worker harassment also exists where “the employer

failed to provide a reasonable avenue for complaint.” Huston v. Procter & Gamble Paper

Prods. Corp., 568 F.3d 100, 105 (3d Cir. 2009).

104.

Here, Defendant’s conduct occurred because of Plaintiff’s legally protected

characteristics and was severe or pervasive enough to make a reasonable nursing mother

believe that the conditions of employment were altered, and that the working

environment was intimidating, hostile or abusive.

105.

The harassing conduct directly refers to Plaintiff’s sex traits and pregnancy.

106.

The City delegated to Plaintiff’s supervisors the authority to control the work

environment and they abused that authority to create a hostile work environment.

107.

Harassing conduct based on Plaintiff’s sex and pregnancy filled the environment

of Plaintiff’s work area.

108.

The City knew that the harassing conduct filled Plaintiff’s work environment.

109.

Harassing conduct occurred daily.

110.

Harassing conduct caused Plaintiff to sustain severe emotional distress resulting

in physical illness and serious psychological sequelae.

111.

Plaintiff subjectively regarded the harassing conduct as unwelcome and unwanted

and objectively opposed the conduct.

112.

The conduct was both severe and pervasive.

113.

The conduct was humiliating.

114.

The conduct unreasonably interfered with Plaintiff’s work performance.

115.

The conduct was so extreme that it resulted in material changes to the terms and

conditions of Plaintiff’s employment.

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116.

The City provided a futile avenue for complaint.

117.

The City retaliated against Plaintiff for her complaints.

118.

The City acted upon a continuing course of conduct.

119.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

reputational harm, diminishment of career opportunities, and other harm, both tangible

and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT V TITLE VII RETALIATION
42 U.S.C. § 2000e-3 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

120.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

121.

Title VII protects employees from retaliation for attempting to exercise their

rights under the Act:

42 U.S.C. § 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of
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his employees . . . because [she] has opposed any practice made an unlawful employment practice by this subchapter, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

122.

The Supreme Court in Burlington v. N. & S.F. Ry. V. White, 548 U.S. 53, 68

(2006) held that a cause of action for retaliation under Title VII lies whenever the

employer responds to protected activity in such a way that “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

123.

Informal complaints and protests can constitute protected activity under the

“opposition” clause of 42 U.S.C. § 2000e-3(a). Moore v. City of Philadelphia, 461 F.3d

331, 343 (3d Cir. 2006) (“Opposition to discrimination can take the form of informal

protests of discriminatory employment practices, including making complaints to

management.”).

124.

Retaliation need not be job-related to be actionable under Title VII—an employer

can effectively retaliate against an employee by taking actions not directly related to her

employment or by causing her harm outside the workplace. White, 548 U.S. at 61-62

(rejecting authority from the Third Circuit and others requiring that the plaintiff suffer an

adverse employment action in order to recover for retaliation).

125.

“[A] plaintiff need not prove the merits of the underlying discrimination

complaint, but only that ‘[she] was acting under a good faith, reasonable belief that a

violation existed.’” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993); Sumner v. United

States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990), overruled on other grounds by

Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir.1995); see also Moore, 461 F.3d at 341

(finding that a transfer of a police officer from a district could constitute actionable

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retaliation because it “is the kind of action that might dissuade a police officer from

making or supporting a charge of unlawful discrimination within his squad.”).

126.

Here, the City discriminated against Plaintiff because of her protected activity

under Title VII.

127.

Plaintiff was acting under a reasonable, good faith belief that her right to be free

from discrimination on the basis of sex was violated.

128.

Plaintiff was subjected to materially adverse actions at the time or after the

protected conduct took place.

129.

The City also discriminated against Plaintiff by taking materially adverse actions

against third parties who engaged in protected activity on Plaintiff’s behalf.

130.

There was a causal connection between the City’s materially adverse actions and

Plaintiff’s protected activity.

131.

The City’s actions were “materially adverse” because they were serious enough to

discourage a reasonable worker from engaging in protected activity.

132.

The City acted upon a continuing course of conduct.

133.

Plaintiff will rely on a broad array of evidence to demonstrate a causal link

between their protected activity and the City’s actions taken against her, such as the

unusually-suggestive proximity in time between events, as well as Defendant’s

antagonism and change in demeanor toward Plaintiff after Defendant became aware of

Plaintiff’s protected activity.

134.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

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reputational harm, diminishment of career opportunities, and other harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VI DISPARATE TREATMENT IN VIOLATION OF EQUAL PROTECTION CLAUSE
42 U.S.C. § 1983 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

135.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

136.

The Fourteenth Amendment to the United States Constitution protects persons

from being subjected to discrimination, by persons acting under color of state law, on the

basis of a protected class (e.g., sex). U.S. Const. amend. XIV.

137.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of

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Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983.

138.

Section 1983 provides a cause of action for unconstitutional employment

discrimination by both employers and individuals, so long as the plaintiff shows that the

defendant acted under color of state law. See Fitzgerald v. Barnstable School Committee,

129 S. Ct. 788, 796 (2009) (“The Equal Protection Clause reaches only state actors, but §

1983 equal protection claims may be brought against individuals as well as municipalities

and certain other state entities.”); see also Andrews v. City of Philadelphia, 895 F.2d

1469, 1478 (3d Cir. 1990) (“Liciardello and Doyle objectively should have known the

applicable legal standard, and thus are not protected by qualified immunity in treating, or

allowing their subordinates to treat, female employees differently on the basis of gender

in their work environment.”).

139.

“[M]unicipalities and other local government units [are] included among those

persons to whom § 1983 applies.” Monell v. Department of Social Services of City of

New York, 436 U.S. 658, 690 (1978). However, “a municipality cannot be held liable

under § 1983 on a respondeat superior theory.” Id. at 691. “Instead, it is when execution

of a government's policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id. at 694.

140.

Defendant violated Section 1983 by intentionally discriminating against Plaintiff

in a serious tangible way with respect to her compensation, terms, conditions or

privileges of employment.

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141.

Plaintiff’s protected characteristics (sex) was a determinative or motivating factor

in Defendant’s employment actions.

142.

Defendant cannot show any legitimate nondiscriminatory reason for its

employment practices and any reasons proffered by the Defendant for its actions against

Plaintiff are pretextual and can readily be disbelieved.

143.

Plaintiff’s protected status played a motivating part in the Defendant’s decisions

even if other factors may also have motivated Defendant’s actions against Plaintiff.

144.

Defendant acted under color of state law.

145.

Defendant acted with the intent to discriminate.

146.

Defendant acted upon a continuing course of conduct.

147.

Moreover, this case unquestionably involves official policy: the City, the PPD,

and their policymaking officials (1) directed that the violations occur; (2) authorized the

violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided

inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed

policies to prevent the violations.

148.

Defendant acted with malice or reckless indifference to Plaintiff’s federally

protected rights and as a result there should be an award of punitive damages against

Defendant.

149.

As a result of Defendant’s violations of Plaintiff’s Equal Protection rights,

Plaintiff has suffered damages, including, but not limited to: past and future lost wages,

pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation,

emotional distress, reputational harm, diminishment of career opportunities, and other

harm, both tangible and intangible.

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WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with Section 1983; (3) reasonable attorneys’ fees in accordance with Section 1983; (4) litigation costs in accordance with Section 1983; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Section 1983; (7) punitive damages in accordance with Section 1983; (8) front pay in accordance with Section 1983; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VII HOSTILE WORK ENVIRONMENT IN VIOLATION OF EQUAL PROTECTION CLAUSE
42 U.S.C. § 1983 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

150.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

151.

The Third Circuit has made it clear that harassment can give rise to an equal

protection claim. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1478-79 (3d

Cir. 1990) (upholding verdict for plaintiff on harassment claims against city employees,

based on conclusion that evidence supported finding of purposeful discrimination); see

also Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986)

(“harassment of female employees by a state employer constitutes sex discrimination for

purposes of the equal protection clause of the fourteenth amendment.”); Cheryl L.

Anderson, "Nothing Personal:" Individual Liability under 42 U.S.C. § 1983 for Sexual

Harassment as an Equal Protection Claim, 19 BERKELEY J. EMP. & LAB. L. 60, 80

(1998) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) as support for

argument that harassment can satisfy the intentional discrimination requirement for equal

protection claims).

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152.

The Third Circuit has also made clear that a harassment equal protection claim

can be made even if the defendant is not the plaintiff’s supervisor. See Bonenberger v.

Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997).

153.

Additionally, a plaintiff can show an equal protection violation by a supervisor

who fails properly to address harassment by the plaintiff’s co-workers. Andrews, 895

F.2d at 1479.

154.

A municipal employer can be liable on the theory that it directly encouraged

harassment of the plaintiff, or on the theory that it did not do enough to prevent the

harassment. See Bohen, 799 F.2d at 1187 (“[A] plaintiff can make an ultimate showing of

sex discrimination either by showing that harassment that is attributable to the employer

under § 1983 amounted to intentional sex discrimination or by showing that the

conscious failure of the employer to protect the plaintiff from the abusive conditions

created by fellow employees amounted to intentional discrimination.”); cf. Reynolds v.

Borough of Avalon, 799 F. Supp. 442, 447 (D.N.J. 1992) (holding that “a reasonable jury

might find that the risk of harassment in the workplace is so obvious that an employer's

failure to take action to prevent or stop it from occurring--even in the absence of actual

knowledge of its occurrence--constitutes deliberate indifference, where the employer has

also failed to take any steps to encourage the reporting of such incidents”).

155.

Defendant violated Section 1983 by subjecting Plaintiff to harassment based on

sex and pregnancy.

156.

Defendant’s conduct was not welcomed by Plaintiff.

157.

Defendant’s conduct was so severe or pervasive that a reasonable nursing mother

would find the work environment to be hostile or abusive.

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158.

Plaintiff believed her work environment was hostile or abusive as a result of

Defendant’s conduct.

159.

As a result of the hostile work environment, Plaintiff suffered a “tangible

employment action” defined as a significant change in employment status, failure to

promote, reassignment with significantly different responsibilities, and/or a decision

causing a significant change in benefits.

160.

Defendant failed to exercise reasonable care to prevent harassment in the

workplace by failing to establish an explicit policy against harassment in the workplace

on the basis of sex and pregnancy, failing to fully communicate the policy to their

employees, failing to provide a reasonable way for Plaintiff to make a claim of

harassment to higher management, and failing to take reasonable steps to promptly

correct the harassing behavior raised by Plaintiff.

161.

Defendant acted under color of state law.

162.

Defendant acted with the intent to discriminate.

163.

Defendant acted upon a continuing course of conduct.

164.

Moreover, this case unquestionably involves official policy: the City, the PPD,

and their policymaking officials (1) directed that the violations occur; (2) authorized the

violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided

inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed

policies to prevent the violations.

165.

Defendant acted with malice or reckless indifference to Plaintiff’s federally

protected rights and as a result there should be an award of punitive damages against

Defendant.

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166.

As a result of Defendant’s violations of Plaintiff’s Equal Protection rights,

Plaintiff has suffered damages, including, but not limited to: past and future lost wages,

pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation,

emotional distress, reputational harm, diminishment of career opportunities, and other

harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with Section 1983; (3) reasonable attorneys’ fees in accordance with Section 1983; (4) litigation costs in accordance with Section 1983; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Section 1983; (7) punitive damages in accordance with Section 1983; (8) front pay in accordance with Section 1983; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VIII RETALIATION IN VIOLATION OF PETITION CLAUSE
42 U.S.C. § 1983 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

167.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

168.

The First Amendment gives persons the right to petition the Government for a

redress of grievances. U.S. Const. amend. I.

169.

“[R]etaliation by a government employer for a public employee’s exercise of the

right of access to the courts may implicate the protections of the Petition Clause.”

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011); see also Mack v. Warden

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Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (holding that an inmate’s oral grievance is

protected under the Petition Clause).

170.

To be protected under the First Amendment, speech by a government employee

“must be on a matter of public concern, and the employee's interest in expressing herself

on this matter must not be outweighed by any injury the speech could cause to ‘the

interest of the State, as an employer, in promoting the efficiency of the public services it

performs through its employees.’” Waters v. Churchill, 511 U.S. 661, 668 (1994).

171.

A report of sex-based discrimination or harassment by a government official can

constitute speech on a matter of public concern. See Azzaro v. County of Allegheny, 110

F.3d 968, 975 (3d Cir. 1997) (reasoning that the plaintiff’s reports “brought to light actual

wrongdoing on the part of one exercising public authority.”).

172.

The plaintiff must show a “causal link” between the protected speech and the

adverse employment action. See Azzaro, 110 F.3d at 981 (reversing summary judgment

dismissing First Amendment retaliation claim because there existed “a material dispute of

fact as to whether [plaintiff’s] reports were a motivating factor in the discharge

decision”).

173.

If the plaintiff shows that the decisionmaker was aware of the protected conduct,

then the plaintiff may use the temporal proximity between that knowledge and the

adverse employment action to argue causation. Thomas v. Town of Hammonton, 351

F.3d 108, 114 (3d Cir. 2003).

174.

Here, Plaintiff engaged in activity that was protected by the First Amendment’s

Petition Clause.

175.

Plaintiff’s speech was on a matter of public concern.

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176.

Defendant took materially adverse employment actions against Plaintiff for

engaging in protected activity.

177.

Plaintiff’s protected activity was a substantial or motivating factor in Defendant’s

decisions.

178.

Defendant cannot show any legitimate nondiscriminatory reason for its

employment practices and any reasons proffered by Defendant for its actions against

Plaintiff are pretextual and can readily be disbelieved.

179.

Defendant acted upon a continuing course of conduct.

180.

Moreover, this case unquestionably involves official policy: the City, the PPD,

and their policymaking officials (1) directed that the violations occur; (2) authorized the

violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided

inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed

policies to prevent the violations.

181.

Defendant acted with malice or reckless indifference to Plaintiff’s federally

protected rights and as a result there should be an award of punitive damages against

Defendant.

182.

As a result of Defendant’s violations of Plaintiffs’ Free Speech rights, Plaintiff

has suffered damages, including, but not limited to: past and future lost wages, pain and

suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation,

emotional distress, reputational harm, diminishment of career opportunities, and other

harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) actual damages; (2) compensatory damages;

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Case 2:19-cv-05590-MMB Document 1 Filed 11/26/19 Page 42 of 42

ClassAction.org
This complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Class Action Claims Philadelphia Police Officers Denied Accommodations for Lactation Breaks

 
 Case 2:19-cv-05590-MMB Document 17 Filed 11/12/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANELLE NEWSOME, Plaintiff
v.
CITY OF PHILADELPHIA, Defendant

CIVIL ACTION NO. 19-5590

MEMORANDUM

Baylson, J.

November 12, 2020

I. Introduction

Janelle Newsome (“Plaintiff”) brings this action on behalf of herself and a class of similarly

situated individuals alleging that the City of Philadelphia violated her right to a private, designated

space at the Philadelphia Police Department (“PPD”) to express breastmilk under the Fair Labor

Standards Act. See 29 U.S.C. § 207(r). Stemming from this violation are her other claims, which

allege discrimination and disparate treatment on the basis of sex, hostile work environment, and

retaliation. The Amended Complaint lists eight counts:

• Count 1: Violations of the FLSA’s Protections for Nursing Mothers; • Count 2: FLSA Retaliation; • Count 3: Title VII Disparate Treatment; • Count 4: Title VII Hostile Work Environment; • Count 5: Title VII Retaliation; • Count 6: Section 1983 Disparate Treatment; • Count 7: Section 1983 Hostile Work Environment; and • Count 8: First Amendment Retaliation

Plaintiff filed her Amended Complaint on February 17, 2020. Defendant moved to dismiss

the Complaint on March 2, 2020. Plaintiff responded in Opposition to Defendant’s Motion to

Dismiss on March 16, 2020. On this date, she also filed a Motion to Supplement to the First

Amended Complaint (including her proposed supplemental factual pleadings); this Court granted

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that Motion on March 25, 2020. That Order also allowed ninety additional days for briefing due to COVID-19. On July 30, 2020, this Court issued another Order requiring that all pleadings regarding the Motion to Dismiss be filed by August 21, 2020. On August 21, 2020, Defendant filed a Supplemental Motion to Dismiss. (Def.’s Supp. Mot. to Dismiss at 1, ECF No. 13). II. Factual Background
Plaintiff started working as a PPD officer in December 2014. (Am. Compl. ¶ 38). In July 2018, she gave birth to her child, and returned to work from maternity leave in January 2019. (Am. Compl. ¶ 39–40). Upon her return, she was detailed to the Neighborhood Services Unit on restricted duty. (Am. Compl. ¶ 40). She was still breastfeeding her infant and planned to do so until her child turned one in July 2019. (Am. Compl. ¶ 40).
A. Lack of Nursing Space Plaintiff alleges that she informed her PPD supervisor, Sergeant Gibbons, that she would need to pump breastmilk at work and requested accommodations. (Am. Compl. ¶ 44). He told her “We’ll figure something out,” but nobody from PPD followed up to provide accommodations for Plaintiff. (Am. Compl. ¶ 44). Plaintiff began to pump in colleagues’ offices, and experienced frequent interruptions. (Am. Compl. ¶¶ 46–47, 49). Later, Sgt. Gibbons told Plaintiff and another nursing officer to pump in a male officer’s office. (Am. Compl. ¶ 50). They were also told to “pump at the same time in the same room.” (Am. Compl. ¶ 50). A male officer then told Plaintiff and Officer Allen that “people need to get into the office you’re pumping in during the time that you pump,” and told them to pump in a female coworker’s office. (Am. Compl. ¶ 53). The female civilian coworker told Plaintiff and her coworker to pump elsewhere. (Am. Compl. ¶ 53). When the women brought
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this to Sgt. Gibbon’s attention, he replied that the coworker “ha[d] to” let them pump in her office but did not take any further action to address the situation. (Am. Compl. ¶ 59).
Sgt. Gibbons also told Plaintiff and Officer Allen that if they wanted to pump in private, they had to retrieve a privacy sign from an office that belonged to three male officers and return the sign there afterwards. (Am. Compl. ¶ 55). Plaintiff and Officer Allen asked Sgt. Gibbons if they could store the sign in the female coworker’s office instead, and he replied that he didn’t want to hear that coworker “making a big fuss about the sign” and that he wanted “to avoid hearing her mouth.” (Am. Compl. ¶ 55).
When Plaintiff, her coworker, and a third female officer approached Sgt. Gibbons to address the frequent interruptions and negative statements about their need to pump at work, Sgt. Gibbons said he would not “address it with anyone because [he] would be kicked out of the unit,” and that when he “spoke[] up before [he] was backstabbed and [disciplined.]” (Am. Compl. ¶ 56). When Plaintiff and Officer Allen again raised with Sgt. Gibbons their perception that they had not been given pumping accommodations, he responded that by law, he only had to provide them ten minutes to pump. (Am. Compl. ¶ 60). When Plaintiff explained that pumping could take up to thirty minutes, Sgt. Gibbons changed the subject and continued to fail to provide accommodations. (Am. Compl. ¶ 60).
Around April 29, 2019, Plaintiff and her coworker were instructed to pump in the building’s lunchroom during lunch hour. (Am. Compl. ¶ 61). Plaintiff was interrupted by coworkers trying to enter the lunchroom during their own lunch hour, who gathered outside, knocked on the door, and asked “What’s going on in there?” (Am. Compl. ¶ 61).
As a result of the absence of designated nursing areas at the PPD, Plaintiff stopped pumping at work altogether, and only pumped at night when arrived home. (Am. Compl. ¶ 67). On several
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occasions, Plaintiff and Officer Allen were forced to take sick leave to pump at home. (Am. Compl. ¶ 68–69).
B. Alleged Retaliation Plaintiff filed an EEOC complaint and received a right-to-sue letter. (Am. Compl. ¶¶ 10– 11). Shortly thereafter, in December 2019, the PPD denied several requests for an extension of her restricted duty status, which was on due to a head injury she suffered on the job. (Am. Compl. ¶ 71). From about January 8, 2020 to January 15, 2020, the PPD sent Plaintiff home from work without pay.1 (Am. Compl. ¶ 72). Plaintiff attempted to return to work between January 16, 2020 until January 27, 2020, but was sent home without pay approximately every two to three days, (Am. Compl. ¶ 73), until February 12, 2020. (Am. Compl. ¶ 74). During this period, PPD made Plaintiff use her accrued personal time to account for the work hours affected. (Am. Compl. ¶ 76). Eventually, PPD placed Plaintiff on leave without pay. (Am. Compl. ¶ 74). After Plaintiff filed her lawsuit, coworkers and supervisors allegedly ostracized, stigmatized, and ignored her; she was labeled as a “troublemaker.” (Am. Compl. ¶ 78–79). Plaintiff was scheduled to be terminated from the PPD in late February 2020, but was ultimately placed on “no duty” status, receiving benefits but no pay. (Supp. Compl. ¶ 22, ECF No. 9; Hr’g re Mot. to Dismiss, Nov. 4, 2020). III. Defendant’s Motion to Dismiss Arguments Defendant argues that Plaintiff’s Amended Complaint2 should be dismissed under Fed. R. Civ. Pro. 12(b)(6) because Plaintiff failed to plead a prima facie case under each of the Complaint’s eight counts. The counts are addressed in turn below.
1 Defendant contests this. (Mot. to Dismiss at 4 n.9). 2 Defendant notes at the outset that it accepts as true the facts as pled in Plaintiff’s Complaint for the purposes of this motion. (Mot. to Dismiss at 2 n.1).
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A. Count 1: Violations of the FLSA’s Protections for Nursing Mothers 1. Defendant’s Arguments
The City argues that Plaintiff did not plausibly allege a violation of the FLSA. (Mot. to Dismiss at 5). The applicable statutory provision is 29 U.S.C. § 207(r)(1), which requires employers to provide
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. 29 U.S.C. § 207(r)(1). Citing subsection (A), the City argues that Plaintiff does not allege she was restricted in the amount of time she was permitted to pump. (Mot. to Dismiss at 6). It argues that although she alleged that Sgt. Gibbons stated the law only required him to provide ten minutes for pumping, she did not allege that she was forced to return to work after ten minutes or otherwise temporally restricted from pumping breastmilk. (Mot. to Dismiss at 6, citing Am. Compl. ¶ 60). Regarding subsection (B), the City contends that Plaintiff’s allegations do not meet the statutory requirements because she does not allege that she was “told, ordered, instructed, or otherwise directed to pump in a space open to public view [or] that she was intruded upon.” (Mot. to Dismiss at 9). The City cites Black’s Law Dictionary to define “intrusion” as “[a] person’s entering without permission,” and argues that Plaintiff alleged no entry without intrusion. (Mot. to Dismiss at 6 & n.10). The City argues that two instances of knocking on doors, and uncertainty about where to pump do not violate the statute. (Mot. to Dismiss at 6). Defendant also argues that Plaintiff has not alleged any injury compensable under the FLSA, and that her claim also fails on that point. (Mot. to Dismiss at 8–9). Appellate courts,
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including the Third Circuit, have not addressed this issue, and district courts are split on how to resolve it. The complication stems from the fact that the statute provides that employers are not required to pay employees for time spent pumping, see § 207(r)(2), and § 216(b) provides that enforcement of § 207 is limited to “unpaid minimum wages, . . . unpaid overtime compensation, . . . and in an additional equal amount as liquidated damages.”
Some courts have read this language as not providing for a private cause of action at all.3 Other courts have read the statute more expansively.4 For the reasons explained below, this Court declines to decide that question at this juncture.
2. Analysis Defendant’s Motion to Dismiss is denied on this count. Employers must comply with both prongs (A) and (B) of § 207(r), and Plaintiff has pled facts allowing for the inference that PPD did not meet its obligations under prong (B) to provide a place “free from intrusion” for expressing breast milk. These facts include the frequent intrusions Plaintiff experienced when pumping in each location provided, the hostile attitude Plaintiff received from the occupants of spaces she was
3 See, e.g., Salz v. Casey’s Mktg. Co., No. 4:11-cv-03055, 2012 WL 2952998, at *2–4 (N.D. Iowa July 19, 2012) (“Since Section 207(r)(2) provides that employers are not required to compensate employees for time spent express milking, and Section 216(b) provides that enforcement of Section 207 is limited to unpaid wages, there does not appear to be a manner of enforcing the express breast milk provisions.”); see also Hicks v. City of Tuscaloosa, No 7:13-cv-02063-TMP, 2015 WL 6123209, at *28 (N.D. Ala. Oct. 19, 2015) (referring to the “toothlessness” of § 207(r)(1)). 4 See, e.g., Lico v. T.D. Bank, No. 14-cv-4729, 2015 WL 3467159 (E.D.N.Y. June 1, 2015) (“[I]f an employee needed to take longer breaks in order to travel to appropriate areas to take a nursing break, and was docked pay as a result, those lost wages would be compensable.”); Clark v. City of Tucson, No. CV 14-02543-TUC-CKJ, 2018 WL 1942771, *6 (D. Ariz. 2018) (“Plaintiff’s sick leave and vacation time are financial assets, which she allegedly spent to avoid being forced to express milk at noncompliant stations.”); see also Lampkins v. Mitra QSR, LLC, No. 16-647-CFC, 2018 WL 6188779, at *5 (D. Del. Nov. 28, 2018) (collecting cases).
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told to pump in, and the instruction to pump at the same time as another female officer. (Am. Compl. ¶¶ 46–50, 53, 56, 59, 61–62).
Plaintiff has plausibly alleged a compensable injury under § 207(r), but the Court acknowledges Defendant’s argument that this is a complicated question. The lack of a pumping space caused Plaintiff to take time off work to pump, (Am. Complaint ¶ 68–69), and hours of leave have been held to be financial assets. See Clark, 2018 WL 1942771, at *6. In any event, the Court declines to visit this question until/if a later stage of litigation is reached. See Lico, 2015 WL 3467159, at *4 (“[I]t is not the Court’s role, in deciding a motion to dismiss, to make specific rulings with respect to the scope of damages available . . . . It is sufficient . . . that plaintiff has plausibly alleged a legally cognizable injury under § 207(r).”).
B. Count 2: FLSA Retaliation Defendant also argues that Plaintiff has not made out a plausible claim for retaliation under the FLSA because she has not pled the necessary element of an adverse employment action.5 (Mot. to Dismiss at 11). The Court will not dismiss this count either. The Third Circuit has broad view of what constitutes an adverse employment action. See Henley v. Brandywine Hosp., No. 18-4520, LLC, 2019 WL 3326041, *9–10 (E.D. Pa. July 24, 2019) (explaining various kinds of adverse employment actions, such as “[t]ermination, failure to promote,[ ] failure to hire[,] ... [and] actions that reduce opportunities for promotion or professional growth can constitute adverse employment
5 A Plaintiff asserting a prima facie claim of retaliation under the FLSA must show three elements: (1) that she engaged in activity protected by the FLSA; (2) that she suffered adverse action by the employer subsequent to or contemporaneous with the protected activity; and (3) a causal connection exists between the employee’s activity and the employer’s adverse action. See 29 U.S.C. § 215; Berrada v. Cohen, 792 F. App’x 158, 164 (3d Cir. 2019) (citing Darveau v. Detecon, 515 F.3d 334, 340 (4th Cir. 2008)).
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actions” (quoting Walker v. Centocor Ortho Biotech, Inc., 558 F. App’x 216, 219 (3d Cir. 2014))) (Baylson, J.).
Plaintiff has alleged that she was denied extensions of her restricted duty status, (Am. Compl. ¶ 71), that she was sent home from work without pay, (Am. Compl. ¶ 72–74), that she was placed on leave without pay (Am. Compl. ¶ 75), that she was forced to use her accrued personal time to account for these hours when she sent home without pay (Am. Compl. ¶ 76), and that she suffered reputational harm and stigmatization (Am. Compl. ¶ 79–80). And, Plaintiff was placed on “no duty” status by the PPD in late February 2020. (Supp. Compl. ¶ 22, ECF No. 9; Hr’g re: Mot. to Dismiss, Nov. 4, 2020). Her pleading suggests that her self-reported accidental THC ingestion was a pretext for termination, as she followed PPD’s self-reporting policy, and drug testing showed she was not a habitual THC user. (Supp. Compl. ¶¶ 11–14, 17).
The Court notes that the Amended Complaint does not crystallize a “causal connection” between the employee’s activity and the City’s alleged adverse action. As discussed at the November 4, 2020 hearing, the Court grants leave to file a Second Amended Complaint to clarify Plaintiff’s argument on this count.
C. Count 5: Title VII Retaliation Defendant also argues that Plaintiff did not plead sufficient facts to bring a Title VII Retaliation claim, specifically, on the “materially adverse” action element.6 (Mot. to Dismiss at
6 Prima facie claims of retaliation under Title VII require a slightly different second element than FLSA retaliation. Under Title VII, the plaintiff need not prove an ultimate adverse employment action, because the scope of Title VII’s provision extends beyond employment-related retaliatory acts. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Instead, the plaintiff only needs to prove a “materially adverse” action, which only means it “might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The first and third elements are the same. See Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 320 (3d Cir. 2008) (“To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she
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18). Since the Title VII standard is broader than the FLSA’s, this Court will not dismiss this count for the same reasons as the FLSA retaliation count, discussed supra at B. Without repeating the facts again, it appears that Plaintiff did plead several potentially materially adverse actions. See supra, at B.
Again, the Court notes that the Amended Complaint does not crystallize a “causal connection” between the employee’s activity and the City’s alleged adverse action. As discussed at the November 4, 2020 hearing, the Court grants leave to file a Second Amended Complaint to clarify Plaintiff’s argument on this count.
D. Count 3: Title VII Disparate Treatment For the same reasons discussed above at supra, Part B, Defendant argues that Plaintiff’s Title VII Disparate Treatment claim fails because it also requires an adverse employment action. See Henley v. Brandywine Hosp., No. 18-4520, LLC, 2019 WL 3326041, *9 (E.D. Pa. July 24, 2019) (discussing the elements of Title VII disparate treatment claims when plaintiffs lack direct evidence of discrimination) (Baylson, J.). As discussed above regarding Counts 2 and 5, see supra, the Court will also not dismiss this count. Plaintiff has pled facts that allow for an inference of an adverse employment action.
engaged in a protected activity under Title VII; (2) the employer took an adverse action against her; and (3) there was a causal connection between the employee's participation in the protected activity and the adverse employment action.”).
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E. Count 4: Title VII Hostile Work Environment & Count 7: Section 1983 Hostile Work Environment7
Defendant argues that Plaintiff has failed to plead both Title VII and § 1983 hostile work environment claims because she has not alleged facts that meet two of the five elements required.8 (Mot. to Dismiss 15). Specifically, the City argues Plaintiff has not pled adequately “severe or pervasive conduct,” nor “intentional discrimination.” (Mot. to Dismiss 16–17).
The Court agrees and dismisses these counts. Plaintiff did not plead facts that suggested reactions toward her pumping needs—although offensive—went beyond inconvenience, impatience, or irritation at best. See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (“Whether an environment is hostile requires looking at the totality of the circumstances, including: ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’”) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
F. Count 6: Section 1983 Disparate Treatment Defendant argues that Plaintiff has not pled a plausible § 1983 Disparate Treatment claim because she has not alleged an “policy . . . , ordinance, regulation, or decision officially adopted and promulgated by [the local government’s] officers” that has caused her disparate treatment.
7 The analysis is the same for hostile work environment claims brought under either provision. See Starnes v. Butler Cty. Ct. of C.P., 50th Jud. Dist., 971 F.3d 416, 428 (3d Cir. 2020) (“[Section] 1983 shares the same elements for discrimination purposes as a Title VII action.” 8 A prima facie hostile work environment claim requires a plaintiff to plead five elements: (1) intentional discrimination based on sex; (2) severe or pervasive conduct; (3) a detrimental effect on the plaintiff; (4) a detrimental effect on a reasonable person in similar circumstances; and (5) the existence of respondeat superior liability. Chinery v. Am. Airlines, 778 F. App’x 142, 145 (3d Cir. 2019) (citing Mandel v. M & Q Packaging Corp., 706 F.3d 167 (3d Cir. 2013).
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(Mot. to Dismiss at 21).9 See Eldridge v. Mun. of Norristown, 828 F. Supp. 2d 746, 763 (E.D. Pa. Nov. 10, 2011) (“Municipality liability attaches under § 1983 only when ‘execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.’”) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Still, when the absence of action denies individuals their constitutional rights, the failure to act can amount to a “policy or custom” as well. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1060–61 (3d Cir. 1991). The failure to educate municipal officers in proper practices can provide for a § 1983 claim when that failure amounts to “deliberate indifference” or a “conscious” choice on the part of the municipality. See City of Canton v. Harris, 489 U.S. 378, 388–89 (1989); see also Williams v. Ponik, No. 19-1159, 2020 WL 4930253, *4 (3d Cir. Aug. 24, 2020) (discussing this standard).
Plaintiff has not alleged any facts that there is any written or unspoken “policy or custom” in place to deny nursing women access to pumping rooms, nor has she pleaded facts suggesting the failure to train supervisors on nursing mothers’ rights under the FMLA amounts to “deliberate indifference.” While the facts suggest the PPD did not perfectly execute its duties under the FMLA, the Court cannot go so far as to say that its attempts at doing so were deliberately indifferent to the needs of mothers who needed to express milk. This Count is therefore dismissed.
G. Count 8: First Amendment Retaliation Claim Defendant argues that Plaintiff did not plead a plausible claim under the First Amendment because she did not engage in speech protected by the First Amendment10 nor did the City retaliate
9 Defendant also briefly suggests that Plaintiff did not establish that any such policy or practice was the proximate cause of her injury but does not develop this argument. (Mot. to Dismiss 21– 22). 10 “Where a public employee claims First Amendment retaliation by a government employer, the plaintiff-employee must demonstrate that he ‘spoke as a citizen on a matter of public concern’ for
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against her for engaging in such speech. First, the City contends that Plaintiff’s speech is not protected at all, because she did not speak as a citizen; rather, she spoke as a city employee. Second, it contends that her speech did not implicate a matter of public concern. Last, the city argues that Plaintiff alleged no facts to show that she was treated differently than any other member of the general public.
The Court agrees that Plaintiff did not plead facts to show that she spoke as a citizen. The Third Circuit makes a “practical inquiry” into whether speech is ordinarily within the scope of an employee’s duties. De Ritis v. McGarrigle, 861 F.3d 444, 453 (3d Cir. 2017). Second, it also does not appear that Plaintiff has pled a matter of public concern. That standard is quite high, and the matter “must relate to ‘a subject of general interest and of value and concern to the public.’” Id. at 455. Day-to-day employment grievances do not suffice, and the tone of communication is irrelevant. Id. Because the Court agrees with Defendant and dismisses this Count on the first two elements, it will not go into the Third Circuit’s balancing test for the third element. See generally id. at 456–57 (discussing the balancing test). IV. Conclusion
For the foregoing reasons, the Court GRANTS the Motion to Dismiss without prejudice as to Counts II (FLSA Retaliation), IV (Title VII Hostile Work Environment), V (Title VII Retaliation), VI (§ 1983 Disparate Treatment), VII (§ 1983 Hostile Work Environment), and VIII (First Amendment Retaliation), but DENIES the Motion to Dismiss as to Counts I (FLSA Violations) and III (Title VII Disparate Treatment).
his activity to be protected by the First Amendment.” Alers v. City of Philadelphia, 919 F. Supp. 2d 528, 553 (E.D. Pa. 2013) (citing Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 385 (2011).
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Case 2:19-cv-05590-MMB Document 17 Filed 11/12/20 Page 13 of 13 It is further ORDERED that Plaintiff submit an Amended Complaint in order to more clearly plead a causal connection within the retaliation counts (Counts II and V). An appropriate Order follows.
O:\CIVIL 19\19-5590 Newsome v. City of Philadelphia\19cv5590 memo post hearing.docx
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 Case 2:19-cv-05590-MMB Document 6 Filed 02/17/20 Page 1 of 44

DEREK SMITH LAW GROUP, PLLC IAN M. BRYSON, ESQUIRE Attorney ID No. 321359 1835 Market Street, Suite 2950 Philadelphia, PA 19103 (215) 391-4790 ian@dereksmithlaw.com Attorneys for Plaintiff and the Proposed Class
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANELLE NEWSOME, individually and on behalf of others similarly situated,
Plaintiff,
v.
CITY OF PHILADELPHIA,

Civil Action No. 19-5590
FIRST AMENDED COLLECTIVE ACTION COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF and DAMAGES

Defendant.

NATURE OF THE ACTION 1. Plaintiff Janelle Newsome brings this suit individually and on behalf of others similarly
situated as a collective action seeking all available relief under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq. (“FLSA”) contending that the Philadelphia Police Department has systematically and willfully failed to provide nursing female police officers with “reasonable break time to express breast milk for their nursing children for 1 year after the child’s birth each time such employee has need to express the milk,” and has further failed to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by employees to express breast milk.” 29 U.S.C. § 207(r)(1)(A) and (B).

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2. Plaintiff also brings this action for personal relief from sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (“Section 1983”).
3. Plaintiff seeks injunctive and declaratory relief, compensatory damages, punitive damages, liquidated damages, statutory penalties, reasonable attorneys’ fees, litigation costs and pre- and post-judgment interest.
JURISDICTION AND VENUE 4. This Court has jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C §§ 1331
and 1343. 5. Plaintiff’s action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201
and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 6. Venue in this Court is proper under 28 U.S.C. § 1391(b) because a substantial part of the acts or omissions giving rise to the claims alleged herein occurred within this judicial district, and Defendant is subject to personal jurisdiction here.
PARTIES 7. Plaintiff Janelle Newsome is an adult individual resident of Philadelphia County and a
citizen of the Commonwealth of Pennsylvania. Pursuant to Section 216(b) of the FLSA, Plaintiff has consented in writing to be a party in this action. Her executed Consent to Sue form is attached hereto as Exhibit “A.” 8. Defendant City of Philadelphia (“the City”) is a municipality of the Commonwealth of Pennsylvania. The City owns, operates, manages, directs and controls the Philadelphia
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Police Department (“the PPD”), whose agents, servants and employees at all relevant times were acting within the course and scope of their employment under color of state law and operating pursuant to official policies, customs or practices of the City and the PPD. 9. Plaintiff was an “employee” and Defendant was an “employer” covered by the FLSA and Title VII. EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER TITLE VII 10. Ms. Newsome timely filed charges of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”) alleging violations of Title VII the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963 (“PHRA”), and the Philadelphia Fair Practices Ordinance, Philadelphia Code §§ 9-1101 et seq. (“PFPO”). 11. EEOC issued Ms. Newsome a Notice of Right to Sue Within 90 Days. Ms. Newsome has timely filed this action and has complied with all administrative prerequisites to bring this lawsuit. 12. Ms. Newsome’s PHRA and PFPO claims are still pending before PHRC because less than one year has elapsed since PHRC assumed jurisdiction over her charges. After one year, Ms. Newsome will seek leave to amend this complaint to assert her PHRA and PFPO claims.
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FLSA COLLECTIVE ACTION ALLEGATIONS 13. On August 20, 2019 Philadelphia Mayor Jim Kenney announced the abrupt resignation of
Police Commissioner Richard Ross Jr. amid reports of discrimination within the police department.1 14. “Last summer, the City implemented a new sexual harassment prevention policy and a series of internal reforms designed to prevent workplace discrimination and harassment throughout the government. While rolling out a new policy understandably takes time, I do not believe the Police Department has taken the necessary actions to address the underlying cultural issues that too often negatively impact women . . .”2 15. The PPD employs over 6300 sworn members, approximately 35% of which are women. 16. There are eleven different ranks in the PPD in the following order, beginning at the entry level position of Police Officer and ending with Police Commissioner: (1) Police Officer; (2) Detective; (3) Corporal; (4) Sergeant; (5) Lieutenant; (6) Captain; (7) Staff Inspector; (8) Inspector; (9) Chief Inspector; (10) Deputy Commissioner; and (11) Commissioner. The City’s Office of Human Resources provides the following job class specification for Police Officer:
GENERAL DEFINITION This is general duty police work on an assigned shift involving the protection of life and property, enforcement of laws, and investigation of crimes. Work is performed under the supervision of a police officer of higher rank. The employee has a controlling impact on the prevention of crime within an assigned area. Work requires regular exposure to uncontrolled and/or unpredictable conditions and the frequent exercise of moderate physical effort. The essential functions and tasks required for the position of police officer, include, but are not limited to, qualification and use of firearms, patrolling and apprehension of suspects.
1 Office of the Mayor, Mayor Announces Resignation of PPD Commissioner Richard Ross, Jr., https://www.phila.gov/2019-08-20-mayor-announces-resignation-of-ppd-commissioner-richard-ross-jr/ 2 Id.
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Employees in this class must also comply with Commonwealth municipal police officer certification requirements
ALLOCATING FACTORS
Positions in this class must be able to perform the essential and physical functions of the job.
TYPICAL EXAMPLES OF WORK
Patrols a designated area of the city, on foot, bicycle, segway or horseback, or in a car, motorcycle, or police boat to prevent and discover the commission of crime and to enforce traffic and parking regulations; answers calls and complaints, taking the necessary police action.
Takes proper police action at scene of crime, administers first aid, gathers evidence, locates witnesses and makes arrest; appears in court to present evidence and testify against persons accused of crimes.
Investigates persons suspected of being engaged in gambling, illegal sale of liquors, or other vice activities; checks the operation of taverns, poolrooms, dance halls, clubs, and similar establishments for compliance with laws and ordinances.
Ascertains validity of information or secures evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants, and witnesses, takes information or secures evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants and witnesses to obtain information about crimes; reports automobile accidents, interviews witnesses, takes information, and makes detailed reports.
Investigates complaints concerning juveniles; discusses the case with complainant, juvenile, parents and others who may be able to aid in the case; investigates crimes by and against juveniles; testifies in court concerning case, visits neighborhood boys’ clubs and recreation centers, counseling leaders on juvenile problems.
Writes detailed reports of automobile accidents in cases where personal injuries or property damage is apparent.
Works with community residents, business owners and other City employees to solve problems of crime and disorder.
Performs all duties and responsibilities at the highest level of personal and professional ethics.
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Uses computer systems to identify crime patterns, analyzes the nature of crime and disorders, problems and obtains information relevant to crime control and prevention.
May serve in the district operations office to perform necessary clerical procedures connected with police work.
Performs related work as required.
REQUIRED KNOWLEDGE, SKILLS AND ABILITIES
KNOWLEDGE OF:
• the use, care and safe handling of firearms and other equipment used in the performance of essential tasks;
• the laws controlling, and the procedures, practices and techniques necessary to police patrol operations;
• the laws, codes, statutes and regulations concerning criminal activity, especially when they apply to law enforcement operations;
• the criminal justice system as it applies to law enforcement operations; • the techniques, practice and procedures necessary to the effective
interaction with the general public, victims, suspects, and officers of other agencies and municipalities; and • duty manuals, departmental organizations, administrative direction and applicable City ordinances.
SKILL IN:
• the use and care of firearms and other equipment used in the performance of essential tasks
ABILITY TO:
• cope with situations firmly, courteously, tactfully and with respect for the rights of others;
• analyze situations quickly and objectively, and to determine a proper course of action to be taken;
• understand and carry out oral and written instructions; • write and speak effectively; • learn clerical procedures connected with police work; • make arrests; • take necessary police action to prevent the commission of a crime, including
use of a firearm where needed; • patrol streets on foot; • respond to emergency situations; • use firearms and other weapons as needed; • operate equipment in the performance of essential tasks;
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• perform the essential and physical functions of the job; • identify, analyze and respond to crime and disorder problems; and • use computer systems to obtain necessary information in the performance
of the position. MINIMUM ACCEPTABLE TRAINING AND EXPERIENCE
For employees hired from eligible lists for Police Officer Recruit initially established before 2012:
EDUCATION: Education equivalent to standard high school.
AND
TRAINING: Recent successful completion of training as a Police Officer Recruit at the City of Philadelphia Police Academy.
OR
CERTIFICATION: Possession of Pennsylvania Municipal Police Officers’ Certification from the Pennsylvania Municipal Police Officers Education and Training Commission prior to appointment and during tenure of employment as a Police Officer 1.
For employees hired from eligible lists for Police Officer Recruit initially established during or after 2012 or from Police Officer 1 eligible lists initially established during or after 2011:
Option 1
TRAINING: Recent successful completion of training as a Police Officer Recruit at the City of Philadelphia Police Academy.
OR
Option 2
EDUCATION: Education equivalent to completion of a standard high school.
AND
EXPERIENCE: One year of full time employment as a commonwealth or state certified Law Enforcement Officer which has been within the three year period immediately prior to the thirtieth (30) day after the last date for filing applications for the examination for this class.
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CERTIFICATION: Possession of a commonwealth or state Law Enforcement Officers’ Certification. PHYSICAL AND MEDICAL REQUIREMENTS Ability to meet the physical and medical standards approved for this class. Age—Must have reached Nineteenth (19th) Birthday as of the date of appointment. LICENSES, REGISTRATIONS AND/OR CERTIFICATES Possession of Pennsylvania Municipal Police Officers’ Certification from the Pennsylvania Municipal Police Officers Education and Training Commission prior to appointment and during tenure of employment as a Police Officer 1. Initial and annual qualification on a police firearms course, by a certified police firearms instructor, with any firearms, shotguns, rifles authorized for use including personal weapons carried in lieu of issued weapons or as a second weapon. Possession of a valid proper class motor vehicle operator's license as issued by the Commonwealth of Pennsylvania within 60 days of establishing Pennsylvania residency and during tenure of employment as a Police Officer 1. Preferred License Possession of a valid proper class motor vehicle operator's license from any state at least three years prior to appointment as a Police Officer 1. See City of Philadelphia Office of Human Resources Personnel Job Class Specifications, Police Officer 1, https://www.phila.gov/personnel/specs/6A02.htm
17. Pursuant to 29 U.S.C. §§ 216(b) and 207(r) of the FLSA, Ms. Newsome brings this action individually and on behalf of other similarly situated female Police Officers employed by the PPD during the past three years who were or continue to be denied their rights under the FLSA’s “Break Time for Nursing Mothers” provision, which requires employers to provide (1) “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk”; and (2) “a place, other than a bathroom, that is shielded from view and free from
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intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(A) and (B). 18. The members of the putative class are hereinafter referred to as “Collective Class Plaintiffs.” 19. Plaintiff estimates that there are in excess of 500 other similarly situated Collective Class Plaintiffs who are working or worked for the PPD and are or were unlawfully denied their rights under the FLSA’s Break Time for Nursing Mothers provision, 29 U.S.C. § 207(r). 20. The precise number of employees can be easily ascertained by Defendant. These employees can be identified and located using Defendant’s payroll and personnel records. Potential Collective Class Plaintiffs may be informed of the pendency of this Collective Action by direct mail and/or publication. 21. Pursuant to 29 U.S.C. § 216(b), this action is properly maintained as a collective action because all class members are similarly situated. Plaintiff and other similarly situated female Police Officers (1) were and continue to be similarly denied reasonable break time to express breast milk for their nursing children for 1 year after birth each time the need arises, and also denied a private place, other than a bathroom, to do so; (2) had the same or substantially similar job classifications and duties; and (3) are subject to the same uniform policies, business practices, payroll practices, and operating procedures. 22. Further, Defendant’s willful policies and practices, which are discussed more fully below, whereby Defendant denied and continues to deny Plaintiff and Collective Class Plaintiffs their rights under the FLSA’s Break Time for Nursing Mothers provision, affected and continue to affect Plaintiff and Collective Class Plaintiffs in the same fashion.
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23. In violation of the FLSA, Defendant fails to provide Plaintiff and Collective Class Plaintiffs “reasonable break time to express breast milk for [their] nursing child[ren] for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A) and (B).
24. In violation of the FLSA, Defendant also fails to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by [Plaintiff and Collective Class Plaintiffs] to express breast milk.” 29 U.S.C. § 207(r)(1)(B).
25. In violation of the FLSA, Defendant also fails to post notices explaining the Act in conspicuous places in every establishment where its police officers are employed so as to permit them to observe readily a copy. 29 CFR § 516.4.
26. These policies and practices are unequivocal evidence of Defendant’s systematic, willful and improper failure to follow the provisions of the FLSA.
27. Plaintiff will request the Court to authorize notice to all current and former similarly situated female Police Officers employed by the PPD in the last three years to inform them of the pendency of this action and their right to “opt in” to this lawsuit pursuant to 29 U.S.C. § 216(b) for the purpose of seeking actual damages, liquidated damages, attorneys’ fees, litigation costs, declaratory and injunctive relief, employment consistent with the FLSA, and all other relief available. DECLARATORY RELIEF ALLEGATIONS
28. This lawsuit presents an actual controversy between Plaintiff and Collective Class Plaintiffs against Defendant concerning their rights and respective duties.
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29. While there is a dearth of cases that discuss the appropriateness of a claim for declaratory relief in an FLSA case, the Supreme Court found in Public Affairs Associates v. Rickover, 369 U.S. 111 (1962) that the Declaratory Judgment Act authorizes federal courts to make declarations of rights as to impending conduct on a discretionary basis. 369 U.S. at 112; see also Salazar-Martinez v. Fowler Brothers, Inc., 2011 WL 915675 (W.D.N.Y. Mar. 15, 20l1) (denying motion to dismiss declaratory relief count in an FLSA case).
30. Plaintiff and Collective Class Plaintiffs face continuing harm during employment by Defendant.
31. Declaratory relief is therefore necessary and appropriate. INJUNCTIVE RELIEF ALLEGATIONS
32. If Defendant’s conduct is allowed to continue Plaintiff and Collective Class Plaintiffs will be subject to significant and irreparable harm to their federally protected rights for which no adequate remedy at law exists.
33. By depriving Plaintiff and Collective Class Plaintiffs of employment inconsistent with the FLSA, Defendant will inflict significant and irreparable medical, emotional, dignitary, and other harms for which no adequate remedy at law exists.
34. Injunctive relief is therefore necessary and appropriate. FACTUAL BACKGROUND
35. The PPD has no policy or directive in place to provide basic accommodations for breastfeeding mothers like Ms. Newsome.
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36. The PPD does not provide accommodations for nursing mothers like Ms. Newsome—it does not provide time for women to express milk, nor does it provide private space that is not a bathroom each time women need to pump.
37. The PPD does not provide notice of nursing mothers’ rights. 38. On December 22, 2014, Ms. Newsome started working for the PPD as a Police Officer
assigned to the 18th District. 39. In July 2018, Ms. Newsome gave birth to her child. 40. In January 2019, Ms. Newsome returned to work from leave and was detailed to the
PPD’s Neighborhood Services Unit on restricted duty. She was still nursing her infant child and expected to do so until her child reached age one in July 2019. 41. Upon returning to work, Ms. Newsome experienced ongoing pregnancy discrimination, harassment and retaliation regarding her need to express milk at work. 42. Defendant denied Ms. Newsome reasonable break time to express breast milk for her nursing child for 1 year after the child’s birth each time she had the need to express the milk. 43. Defendant also denied Ms. Newsome a private place, other than a bathroom, that was shielded from view and free from intrusion from coworkers and the public that she could use to express breast milk. 44. When Ms. Newsome arrived at the Neighborhood Services Unit, she informed her supervisor, Sergeant Herbert Gibbons, that she would need to pump at work and requested accommodations. Because the PPD does not provide accommodations for nursing mothers, Sergeant Gibbons failed to apprise Ms. Newsome of her right to take time to express milk in a private space each time she needed to pump. Rather, Sergeant
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Gibbons stated, “We’ll figure something out,” and at no time thereafter did Defendant provide accommodations for Ms. Newsome. 45. As a result, Ms. Newsome was forced to express milk at irregular times or not at all; and had to pump in unsanitary bathrooms and locker rooms, or in places where she was constantly interrupted and embarrassed by coworkers. 46. For example, Ms. Newsome attempted to pump in an office that was frequently used by the building’s all-male tech crew, who stated “we’re going to be in here for a while.” Occasionally, when the room was vacant, Ms. Newsome was interrupted by the all-male tech crew who frequently knocked on the door; asked, “When are you going to be done?” 47. Unreasonably frequent interruptions rendered it difficult or impossible for Ms. Newsome to express milk and restricted the amount of time she was permitted to do so. 48. Moreover, unreasonably frequent interruptions restricted Ms. Newsome’s right to be free from intrusion from coworkers while pumping. 49. As a result, Ms. Newsome was frequently forced to pump in the restroom or was unable to pump at all. 50. By way of further example, on another occasion, Sergeant Gibbons instructed Ms. Newsome and another nursing mother—Officer Jennifer Allen—to “pump in Officer John Whipple’s office.” The same day, or shortly thereafter, Ms. Newsome and Officer Allen were asked, “Were you notified that you had to start pumping in Mary’s (a civilian coworker) office?” Ms. Newsome and Officer Allen were also told “You should pump at the same time in the same room.” 51. Upon hearing this, Ms. Newsome became concerned that her supervisors and coworkers did not support her need to pump at work and that her ability to do so was in jeopardy.
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Ms. Newsome and other nursing mothers rely on a positive, accepting attitude from supervisors and coworkers to feel confident in the ability to continue working while breastfeeding. Ms. Newsome and other nursing mothers also rely on consistent availability of a private space to pump. These accommodations are not provided by the PPD. 52. Defendant’s request that Ms. Newsome and other nursing mothers “pump at the same time in the same room” violates the FLSA’s requirement that the lactation space be private, shielded from view and free from intrusion from coworkers. 53. By way of further example, on another occasion, another police officer, Officer Martin, told Ms. Newsome and Officer Allen that “people need to get into the office you’re pumping in during the time that you pump,” and directed them to “pump in Mary’s office from now on.” Mary told Ms. Newsome and Officer Allen to look for a different place to pump. 54. The unavailability of a designated lactation space restricted Ms. Newsome’s right to express milk each time she had the need to express the milk. 55. By way of further example, on another occasion, Sergeant Gibbons told Ms. Newsome and Officer Allen that if they wanted privacy they would need to retrieve a privacy sign from an office occupied by three male officers each time they needed to pump and return the sign to the three male officers each time they were finished. Ms. Newsome and Officer Allen found this arrangement to be extremely demeaning. They asked Sergeant Gibbons if they could store the sign in a female coworker’s office and Sergeant Gibbons said he “doesn’t want to hear Mary making a big fuss about the sign,” and that he “wants to avoid hearing her mouth.”
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56. By way of further example, on another occasion, Ms. Newsome, Officer Allen and Officer Tanya Richardson approached Sergeant Gibbons about their coworkers’ frequent interruptions and negative statements regarding their need to express milk at work. They requested that Sergeant Gibbons address the issue with their coworkers. In response, Sergeant Gibbons stated, “I won’t address it with anyone because I would be kicked out of the unit.” He further stated, “Anytime I have spoken up before I was backstabbed and given 18’s (disciplined).”
57. These frequent negative interactions regarding Ms. Newsome’s and Officer Allen’s rights caused both women to cry at work on several occasions. Because Defendant subjected Ms. Newsome to consistent ridicule and embarrassment she was unable to express milk for her nursing child each time she needed to express the milk.
58. Moreover, supervisor Sergeant Gibbons’ statement that he would be disciplined for accommodating the needs of nursing mothers is just one example of the PPD’s policy and practice of violating the rights of nursing mothers.
59. By way of further example, on another occasion, Sergeant Gibbons lied to Ms. Newsome and Officer Allen stating, “Effective immediately you will pump in Mary’s office, a permanent sign will be made that will hang on the door, and you will each have keys to the office. You can pump whenever you want to.” This conversation occurred in lateApril 2019, approximately 4 months after Ms. Newsome had returned to work from leave. The accommodations Sergeant Gibbons promised were never put into place. Ms. Newsome and Officer Allen asked Sergeant Gibbons “if Mary had been notified that we were to pump in her office,” and Sergeant Gibbons said “yes.” However, when Ms. Newsome and Officer Allen attempted to use Mary’s office, Mary stated, “I have work to
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do, you have to use another office.” Officer Allen informed Sergeant Gibbons that “Mary said we can’t use her office,” and Sergeant Gibbons responded, “she has to,” but took no further action to remedy the situation. He did not provide Ms. Newsome and Officer Allen with keys or a permanent sign as he had promised. He did not instruct Mary to allow the women to pump in her office. 60. By way of further example, on another occasion, Ms. Newsome and Officer Allen again complained to Sergeant Gibbons that they had not been given the basic accommodations that he had promised. Ms. Newsome stated, “You said provisions would be made for us.” In response, Sergeant Gibbons said, “By law, I only have to give you 10 minutes.” Ms. Newsome responded, “10 minutes is not long enough to begin the flow of milk—it could take me up to 30 minutes.” Sergeant Gibbons changed the subject and failed to provide accommodations. Sergeant Gibbons implied by his words and actions that he would continue to refuse to provide Ms. Newsome accommodations consistent with the FLSA. 61. By way of further example, around April 29, 2019, Ms. Newsome and Officer Allen were instructed to pump in the building’s unsanitary lunchroom during lunch hour. Ms. Newsome was exposed to incessant interruptions by coworkers attempting to gain access to the lunchroom during their lunch hour who started gathering outside, knocking on the door and asking, “What’s going on in there?” 62. When Ms. Newsome opened the door to the lunch room, one employee who had been waiting outside said “FINALLY” and groaned. The employee then asked Ms. Newsome, “Can I come in when you’re pumping because I’m a woman?” 63. The PPD is responsible for alerting employees about the employer’s worksite lactation program (which the PPD does not have) and for negotiating policies and practices to help
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facilitate each employee’s infant feeding goals. Defendant failed to meet these requirements. 64. The PPD is responsible for knowing exactly how to support employees like Ms. Newsome, including educating all staff about the importance of respecting a coworker’s privacy while pumping and providing coverage during lactation breaks. Defendant failed to meet these requirements. 65. The PPD is responsible for ensuring that all employees will assist in providing a positive atmosphere of support for breastfeeding employees like Ms. Newsome. Defendant failed to meet these requirements. 66. The PPD’s ongoing failure to provide Ms. Newsome with consistent, private and sanitary lactation space caused her extreme anxiety and uncertainty about her ability to continue breastfeeding her child. Breastfeeding and working takes a lot of time, coordination and dedication from a mother. A lactation space is necessary because in order to begin the flow of milk, mothers must be able to sit down and relax, and not be stressed. Mothers such as Ms. Newsome who are placed in an open or uncomfortable space, or who are worried about hostility from coworkers, may not be able to pump milk or may not be able to pump milk as quickly. 67. As a result of the PPD’s failure to designate private, sanitary rooms for nursing employees like Ms. Newsome to express breast milk at work, Ms. Newsome was forced to stop pumping at work altogether. For the next several months she could only pump at nighttime when she arrived home from work. 68. On several occasions, Ms. Newsome was forced to take sick leave to pump at home. 69. Officer Allen also was forced to stop pumping at work and took leave to pump at home.
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70. After Ms. Newsome asserted her rights under the FLSA, the PPD retaliated. 71. In December 2019, in close temporal proximity to when Ms. Newsome filed an EEOC
charge and a federal lawsuit, Defendant denied several requests for an extension of her restricted duty status (she was on restricted duty as a result of a head injury she had suffered on the job). 72. From approximately January 8, 2020 to January 15, 2020, Defendant sent Ms. Newsome home from work without pay. 73. Between approximately January 16, 2020 to January 27, 2020, Ms. Newsome attempted to return to work, however Defendant sent her home without pay approximately every 2 to 3 days. 74. From approximately January 27, 2020 to February 12, 2020, Defendant again sent Ms. Newsome home from work without pay. 75. In February 2020, Defendant placed Ms. Newsome on leave without pay. 76. Defendant forced Ms. Newsome to use her accrued personal time during the time periods mentioned above when Defendant forced Ms. Newsome to stay home from work without pay. 77. Defendant notified Ms. Newsome that as a result of the above, her accrued personal time is now 59 hours into the negative. 78. Moreover, after Ms. Newsome filed her lawsuit, coworkers and supervisors in the Neighborhood Services Unit ostracized, stigmatized and ignored her. 79. Ms. Newsome was labeled a “troublemaker” after she filed her lawsuit. 80. The above are also some examples of the unlawful discrimination, harassment and retaliation that Ms. Newsome personally suffered at the hands of Defendant.
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81. Defendant discriminated against Ms. Newsome in the terms and conditions of her employment because of her sex characteristics.
82. Defendant retaliated against Ms. Newsome because she reported or otherwise opposed Defendant’s illegal conduct.
83. Defendant subjected Ms. Newsome to harassment and a hostile work environment based on sex and retaliation.
84. Ms. Newsome claims a continuous practice of discrimination and makes all claims herein under the continuing violations doctrine.
85. As a result of Defendant’s unlawful discrimination, harassment and retaliation, Ms. Newsome has suffered ongoing emotional distress.
86. Upon information and belief, the discrimination and retaliation will continue and Plaintiff hereby makes a claim for all continuing harassment and retaliation.
87. In 2011, Surgeon General Regina Benjamin issued a Call to Action to Support Breastfeeding (“Call to Action”), which identified employment as a significant barrier for women to meet their breastfeeding goals.3
88. Breast milk is well recognized as the optimal source of nutrition for infants and it provides numerous protections against illnesses and diseases for infants and mothers alike.
3 U.S. Department of Health and Human Services. The Surgeon General’s Call to Action to Support Breastfeeding. Washington, DC: U.S. Department of Health and Human Services, Office of the Surgeon General; 2011.
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89. Infants who are not breastfed or who are weaned early are more likely to suffer common childhood infections such as gastrointestinal infections and acute otitis media, as well as lower respiratory infections and sudden infant death syndrome.4
90. Furthermore, breastfed infants are less likely to be overweight or have diabetes later in life and mothers who breastfeed are less likely to develop breast and ovarian cancer.5
91. Increased duration of lactation is also associated with a lower prevalence of hypertension, diabetes, and cardiovascular disease in women.6
92. The majority of mothers in the United States want to breastfeed and most (80%) start breastfeeding.7
93. Although breastfeeding initiation and duration have consistently improved, one study revealed that 60% of women do not meet their breastfeeding goals.8
94. Mothers face a range of potential barriers to breastfeeding, including lack of support from employers.9
4 Ip S, Chung M, Raman G, et al. Breastfeeding and maternal and infant health outcomes in developed countries. Evid Rep Technol Assess. 2007:1–186. 5 Victora CG, Bahl R, Barros AJ, et al. Breastfeeding in the 21st century: Epidemiology, mechanisms, and lifelong effect. Lancet (London, England) 2016;387:475–490. 6 Schwarz EB, Ray RM, Stuebe AM, et al. Duration of lactation and risk factors for maternal cardiovascular disease. Obstet Gynecol. 2009;113:974–982. 7 Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Nutrition, physical activity and obesity data, trends and maps web site. 2015 Available at: https://nccd.cdc.gov/NPAO_DTM. Accessed February 17, 2020. 8 Odom EC, Li R, Scanlon KS, Perrine CG, Grummer-Strawn L. Reasons for earlier than desired cessation of breastfeeding. Pediatrics. 2013;131:e726–e732. 9 U.S. Department of Health and Human Services. The Surgeon General’s Call to Action to Support Breastfeeding. Washington, DC: U.S. Department of Health and Human Services, Office of the Surgeon General; 2011.
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95. Employed mothers are less likely to initiate breastfeeding and more likely to stop breastfeeding earlier than mothers who are not employed.10
96. Employed mothers who are breastfeeding face a number of challenges such as inflexible work schedules and a lack of privacy to express their milk and unsupportive employers.
97. The impact of Defendant’s failure to comply with the requirements of the FLSA will fall disproportionally on female police officers.
98. As a result of Defendant’s violations of the law, Plaintiff and Collective Class Plaintiffs were subjected to employment inconsistent with the FLSA.
99. As a result, Plaintiff and Collective Class Plaintiffs have suffered damages and will continue to be irreparably harmed.

COUNT I VIOLATIONS OF FLSA PROTECTIONS FOR NURSING MOTHERS
29 U.S.C. § 207(r) Plaintiff and Collective Class Plaintiffs v. Defendant City of Philadelphia

100.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

101.

Section 4207 of the Patient Protection and Affordable Care Act (“ACA”), which

amended Section 7 of the FLSA, 29 U.S.C. § 207, requires employers to provide

“reasonable break time for an employee to express breast milk for her nursing child for 1

year after the child’s birth each time such employee has need to express the milk.” 29

U.S.C. § 207(r)(1)(A).

102.

The law further requires employers to provide “a place, other than a bathroom,

that is shielded from view and free from intrusion from coworkers and the public, which

may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(B).

10 Mirkovic KR, Perrine CG, Scanlon KS, Grummer-Strawn LM. In the United States, a mother’s plans for infant feeding are associated with her plans for employment. J Hum Lact. 2014;30:292–297.
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103.

The FLSA and the “Break Time for Nursing Mothers” provision cover all public

agency employees of a State, a political subdivision of a State, or an interstate

government agency. 29 U.S.C. § 203(s)(1)(C).

104.

The FLSA defines “employer” as “any person acting directly or indirectly in the

interest of an employer in relation to an employee, including individual supervisors and

management officials. 29 U.S.C. § 203(d).

105.

Defendant violated Plaintiff and Collective Class Plaintiffs’ rights under the

FLSA by (1) failing to provide reasonable break time for Plaintiff and Collective Class

Plaintiffs to “express breast milk for her nursing child for 1 year after the child’s birth

each time she had a need to express the milk”; and (2) failing to provide Plaintiff and

Collective Class Plaintiffs “a place, other than a bathroom, that is shielded from view and

free from intrusion from coworkers and the public, which may be used to express breast

milk.”

106.

The foregoing actions, policies and practices of Defendant violate the FLSA.

107.

Defendant’s actions were willful, in bad faith and in reckless disregard of clearly

applicable FLSA provisions.

108.

The FLSA provides, “Any employer who violates the provisions of section

215(a)(3) of this title shall be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3) of this title, including without

limitation employment, reinstatement, promotion, and the payment of wages lost and an

additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

109.

“Although it does not appear that the Third Circuit has addressed the issue, at

least six other circuit courts of appeals have affirmed cases where, in addition to an equal

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amount in liquidated damages, a plaintiff sought to recover non-economic damages, such

as emotional distress damages.” Green v. Ventnor Beauty Supply, Inc., 2019 WL

2099821 at n.1 (D.N.J. May 14, 2019) (citing Pineda v. JTCH Apartments, L.L.C., 843

F.3d 1062, 1065 (5th Cir. 2016) (citing the First, Sixth, Seventh, Eighth, and Ninth

Circuits and noting “the uniform view of our sister circuits that damages for emotional

distress are available” under the FLSA)).

110.

A plaintiff is also entitled to “a reasonable attorney’s fee to be paid by the

defendant, and costs of the action.” Id.

111.

Defendant is liable to Plaintiff and Collective Class Plaintiffs for actual damages,

liquidated damages and other relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable

attorneys’ fees, costs and expenses.

WHEREFORE, Plaintiff prays for the following relief on behalf of herself and Collective Class Plaintiffs:

a. An Order from this Court permitting this litigation to proceed as a collective action pursuant to 29 U.S.C. § 216(b);
b. An Order from this Court ordering Defendant to file with this Court and furnish to the undersigned counsel a list of all names and addresses of all female Police Officers who have worked for Defendant during the preceding three years, and authorizing Plaintiff’s counsel to issue a notice at the earliest possible time to these individuals, informing them that this action has been filed, of the nature of the action, and of their right to opt in to this lawsuit if they worked for Defendant during the liability period, but were or continue to be denied their rights under the Break Time for Nursing Mothers provision of the FLSA;
c. Adjudicating and declaring that Defendant’s conduct as set forth herein and above is in violation of the FLSA;
d. Adjudicating and declaring that Defendant violated the FLSA by failing to provide reasonable break time and private, sanitary lactation space for nursing mothers;

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e. Awarding Plaintiff and Collective Class Plaintiffs damages in an amount consistent with the FLSA;

f. Awarding Plaintiff and Collective Class Plaintiffs liquidated damages in accordance with the FLSA;

g. Awarding Plaintiff reasonable attorneys’ fees and all costs of this action, to be paid by Defendant, in accordance with the FLSA;

h. Awarding pre- and post-judgment interest and court costs as further allowed by law;

i. Granting Plaintiff and Collective Class Plaintiffs leave to add additional plaintiffs by motion, the filing of written opt in consent forms, or any other method approved by the Court; and

j. For all additional general and equitable relief to which Plaintiff and Collective Class Plaintiffs are entitled.

COUNT II FLSA RETALIATION
29 U.S.C. § 215 Plaintiff and Collective Class Plaintiffs v. Defendant City of Philadelphia

112.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

113.

The FLSA prohibits retaliation by employers against employees for asserting their

rights under the Act. 29 U.S.C. § 215(a)(3).

114.

Defendant violated the FLSA’s anti-relation provision when it took materially

adverse employment actions against Plaintiff and Collective Class Plaintiffs for asserting

their rights under the Break Time for Nursing Mothers law.

115.

As a result of Defendant’s violations of the FLSA, Plaintiff and Collective Class

Plaintiffs have suffered damages, including, but not limited to: loss of employment,

diminishment of career opportunities, past and future lost wages, reputational harm, pain

and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation,

emotional distress, and other harm, both tangible and intangible.

116.

The foregoing actions, policies and practices of Defendant violate the FLSA.

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117.

Defendant’s actions were willful, in bad faith and in reckless disregard of clearly

applicable FLSA provisions.

118.

The FLSA provides, “Any employer who violates the provisions of section

215(a)(3) of this title shall be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3) of this title, including without

limitation employment, reinstatement, promotion, and the payment of wages lost and an

additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

119.

“Although it does not appear that the Third Circuit has addressed the issue, at

least six other circuit courts of appeals have affirmed cases where, in addition to an equal

amount in liquidated damages, a plaintiff sought to recover non-economic damages, such

as emotional distress damages.” Green v. Ventnor Beauty Supply, Inc., 2019 WL

2099821 at n.1 (D.N.J. May 14, 2019) (citing Pineda v. JTCH Apartments, L.L.C., 843

F.3d 1062, 1065 (5th Cir. 2016) (citing the First, Sixth, Seventh, Eighth, and Ninth

Circuits and noting “the uniform view of our sister circuits that damages for emotional

distress are available” under the FLSA)).

120.

A plaintiff is also entitled to “a reasonable attorney’s fee to be paid by the

defendant, and costs of the action.” Id.

121.

Defendant is liable to Plaintiff and Collective Class Plaintiffs for actual damages,

liquidated damages and other relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable

attorneys’ fees, costs and expenses.

WHEREFORE, Plaintiff prays for the following relief on behalf of herself and Collective Class Plaintiffs:

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a. An Order from this Court permitting this litigation to proceed as a collective action pursuant to 29 U.S.C. § 216(b);

b. An Order from this Court ordering Defendant to file with this Court and furnish to the undersigned counsel a list of all names and addresses of all female Police Officers who have worked for Defendant during the preceding three years, and authorizing Plaintiff’s counsel to issue a notice at the earliest possible time to these individuals, informing them that this action has been filed, of the nature of the action, and of their right to opt in to this lawsuit if they worked for Defendant during the liability period, but were or continue to be denied their rights under the Break Time for Nursing Mothers provision of the FLSA;

c. Adjudicating and declaring that Defendant’s conduct as set forth herein and above is in violation of the FLSA;

d. Adjudicating and declaring that Defendant violated the FLSA by retaliating against employees who asserted their rights to reasonable break time and private, sanitary lactation space;

e. Awarding Plaintiff and Collective Class Plaintiffs damages in an amount consistent with the FLSA;

f. Awarding Plaintiff and Collective Class Plaintiffs liquidated damages in accordance with the FLSA;

g. Awarding Plaintiff reasonable attorneys’ fees and all costs of this action, to be paid by Defendant, in accordance with the FLSA;

h. Awarding pre- and post-judgment interest and court costs as further allowed by law;

i. Granting Plaintiff and Collective Class Plaintiffs leave to add additional plaintiffs by motion, the filing of written opt in consent forms, or any other method approved by the Court; and

j. For all additional general and equitable relief to which Plaintiff and Collective Class Plaintiffs are entitled.

COUNT III TITLE VII DISPARATE TREATMENT
42 U.S.C. § 2000e-2 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

122.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

123.

Title VII provides, in relevant part, that “it shall be an unlawful employment

practice for an employer . . . to discriminate against any individual with respect to [her]

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compensation, terms, conditions, or privileges of employment, because of [her] race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

124.

Title VII further provides that “it shall be an unlawful employment practice for

any employer . . . controlling . . . training or retraining, including on-the-job training

programs to discriminate against any individual because of [her] race, color, religion, sex,

or national origin in admission to, or employment in, any program established to provide

. . . training.” 42 U.S.C. § 2000e-2(d).

125.

In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076,

which added new language to Title VII’s definitions subsection to specify that Title VII’s

“ter[m] ‘because of sex’ . . . include[s] . . . because of or on the basis of pregnancy,

childbirth, or related medical conditions.; and women affected by pregnancy, childbirth,

or related medical conditions shall be treated the same for all employment-related

purposes . . . as other persons not so affected but similar in their ability or inability to

work.” 42 U.S.C. § 2000e(k); Young v. United Parcel Serv., Inc., 135 S. Ct. 1344-45

(2015) (explaining “that the denial of an accommodation constituted disparate treatment

under the Pregnancy Discrimination Act.”).

126.

Title VII further provides that “un unlawful employment practice is established

when the complaining party demonstrates that race, color, religion, sex, or national origin

was a motivating factor for any employment practice, even though other factors also

motivated the practice.” 42 U.S.C. § 2000e-2(m).

127.

The City engaged in unlawful employment practices prohibited by Title VII by

intentionally discriminating against Plaintiff with respect to her compensation, terms,

conditions, training and privileges of employment because of her sex and pregnancy.

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128.

The City subjected Plaintiff to adverse tangible employment actions—defined as

significant changes in Plaintiff’s employment status, discipline, denial of training, failure

to promote, reassignment with significantly different job responsibilities, and decisions

causing changes in significant changes in her employment benefits.

129.

Plaintiff’s protected characteristics (sex and pregnancy) played a determinative

factor in the City’s decisions.

130.

The City cannot show any legitimate nondiscriminatory reasons for its

employment practices and any reasons proffered by the City for its actions against

Plaintiff are pretextual and can readily be disbelieved.

131.

Alternatively, Plaintiff’s protected status played a motivating part in the City’s

decisions even if other factors may also have motivated its actions against Plaintiff.

132.

The City acted with the intent to discriminate.

133.

The City acted upon a continuing course of conduct.

134.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

reputational harm, diminishment of career opportunities, and other harm, both tangible

and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that the City’s conduct as set

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forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT IV TITLE VII HOSTILE WORK ENVIRONMENT
42 U.S.C. § 2000e-2 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

135.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

136.

Title VII also prohibits hostile work environment harassment, defined as

unwanted comments or conduct regarding the plaintiff’s protected characteristics that

have the purpose or effect of unreasonably interfering with the terms and conditions of

the plaintiff’s employment. Harris v. Forklift Systems, 510 U.S. 17, 21 (1993).

137.

An employer is strictly liable for supervisor harassment that “culminates in a

tangible employment action, such as discharge, demotion, or undesirable reassignment.”

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

138.

Respondeat superior liability for the acts of non-supervisory employees exists

where “the defendant knew or should have known of the harassment and failed to take

prompt remedial action. Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir.

1990).

139.

Employer liability for co-worker harassment also exists where “the employer

failed to provide a reasonable avenue for complaint.” Huston v. Procter & Gamble Paper

Prods. Corp., 568 F.3d 100, 105 (3d Cir. 2009).

140.

Here, Defendant’s conduct occurred because of Plaintiff’s legally protected

characteristics and was severe or pervasive enough to make a reasonable nursing mother

believe that the conditions of employment were altered, and that the working

environment was intimidating, hostile or abusive.

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141.

The harassing conduct directly refers to Plaintiff’s sex traits and pregnancy.

142.

The City delegated to Plaintiff’s supervisors the authority to control the work

environment and they abused that authority to create a hostile work environment.

143.

Harassing conduct based on Plaintiff’s sex and pregnancy filled the environment

of Plaintiff’s work area.

144.

The City knew that the harassing conduct filled Plaintiff’s work environment.

145.

Harassing conduct occurred daily.

146.

Harassing conduct caused Plaintiff to sustain severe emotional distress resulting

in physical illness and serious psychological sequelae.

147.

Plaintiff subjectively regarded the harassing conduct as unwelcome and unwanted

and objectively opposed the conduct.

148.

The conduct was both severe and pervasive.

149.

The conduct was humiliating.

150.

The conduct unreasonably interfered with Plaintiff’s work performance.

151.

The conduct was so extreme that it resulted in material changes to the terms and

conditions of Plaintiff’s employment.

152.

The City provided a futile avenue for complaint.

153.

The City retaliated against Plaintiff for her complaints.

154.

The City acted upon a continuing course of conduct.

155.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

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reputational harm, diminishment of career opportunities, and other harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT V TITLE VII RETALIATION
42 U.S.C. § 2000e-3 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

156.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

157.

Title VII protects employees from retaliation for attempting to exercise their

rights under the Act:

42 U.S.C. § 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [she] has opposed any practice made an unlawful employment practice by this subchapter, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

158.

The Supreme Court in Burlington v. N. & S.F. Ry. V. White, 548 U.S. 53, 68

(2006) held that a cause of action for retaliation under Title VII lies whenever the

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employer responds to protected activity in such a way that “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

159.

Informal complaints and protests can constitute protected activity under the

“opposition” clause of 42 U.S.C. § 2000e-3(a). Moore v. City of Philadelphia, 461 F.3d

331, 343 (3d Cir. 2006) (“Opposition to discrimination can take the form of informal

protests of discriminatory employment practices, including making complaints to

management.”).

160.

Retaliation need not be job-related to be actionable under Title VII—an employer

can effectively retaliate against an employee by taking actions not directly related to her

employment or by causing her harm outside the workplace. White, 548 U.S. at 61-62

(rejecting authority from the Third Circuit and others requiring that the plaintiff suffer an

adverse employment action in order to recover for retaliation).

161.

“[A] plaintiff need not prove the merits of the underlying discrimination

complaint, but only that ‘[she] was acting under a good faith, reasonable belief that a

violation existed.’” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993); Sumner v. United

States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990), overruled on other grounds by

Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir.1995); see also Moore, 461 F.3d at 341

(finding that a transfer of a police officer from a district could constitute actionable

retaliation because it “is the kind of action that might dissuade a police officer from

making or supporting a charge of unlawful discrimination within his squad.”).

162.

Here, the City discriminated against Plaintiff because of her protected activity

under Title VII.

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163.

Plaintiff was acting under a reasonable, good faith belief that her right to be free

from discrimination on the basis of sex was violated.

164.

Plaintiff was subjected to materially adverse actions at the time or after the

protected conduct took place.

165.

The City also discriminated against Plaintiff by taking materially adverse actions

against third parties who engaged in protected activity on Plaintiff’s behalf.

166.

There was a causal connection between the City’s materially adverse actions and

Plaintiff’s protected activity.

167.

The City’s actions were “materially adverse” because they were serious enough to

discourage a reasonable worker from engaging in protected activity.

168.

The City acted upon a continuing course of conduct.

169.

Plaintiff will rely on a broad array of evidence to demonstrate a causal link

between their protected activity and the City’s actions taken against her, such as the

unusually-suggestive proximity in time between events, as well as Defendant’s

antagonism and change in demeanor toward Plaintiff after Defendant became aware of

Plaintiff’s protected activity.

170.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

reputational harm, diminishment of career opportunities, and other harm, both tangible

and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an

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amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VI DISPARATE TREATMENT IN VIOLATION OF EQUAL PROTECTION CLAUSE
42 U.S.C. § 1983 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

171.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

172.

The Fourteenth Amendment to the United States Constitution protects persons

from being subjected to discrimination, by persons acting under color of state law, on the

basis of a protected class (e.g., sex). U.S. Const. amend. XIV.

173.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983.

174.

Section 1983 provides a cause of action for unconstitutional employment

discrimination by both employers and individuals, so long as the plaintiff shows that the

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defendant acted under color of state law. See Fitzgerald v. Barnstable School Committee,

129 S. Ct. 788, 796 (2009) (“The Equal Protection Clause reaches only state actors, but §

1983 equal protection claims may be brought against individuals as well as municipalities

and certain other state entities.”); see also Andrews v. City of Philadelphia, 895 F.2d

1469, 1478 (3d Cir. 1990) (“Liciardello and Doyle objectively should have known the

applicable legal standard, and thus are not protected by qualified immunity in treating, or

allowing their subordinates to treat, female employees differently on the basis of gender

in their work environment.”).

175.

“[M]unicipalities and other local government units [are] included among those

persons to whom § 1983 applies.” Monell v. Department of Social Services of City of

New York, 436 U.S. 658, 690 (1978). However, “a municipality cannot be held liable

under § 1983 on a respondeat superior theory.” Id. at 691. “Instead, it is when execution

of a government's policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Id. at 694.

176.

Defendant violated Section 1983 by intentionally discriminating against Plaintiff

in a serious tangible way with respect to her compensation, terms, conditions or

privileges of employment.

177.

Plaintiff’s protected characteristics (sex) was a determinative or motivating factor

in Defendant’s employment actions.

178.

Defendant cannot show any legitimate nondiscriminatory reason for its

employment practices and any reasons proffered by the Defendant for its actions against

Plaintiff are pretextual and can readily be disbelieved.

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179.

Plaintiff’s protected status played a motivating part in the Defendant’s decisions

even if other factors may also have motivated Defendant’s actions against Plaintiff.

180.

Defendant acted under color of state law.

181.

Defendant acted with the intent to discriminate.

182.

Defendant acted upon a continuing course of conduct.

183.

Moreover, this case unquestionably involves official policy: the City, the PPD,

and their policymaking officials (1) directed that the violations occur; (2) authorized the

violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided

inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed

policies to prevent the violations.

184.

Defendant acted with malice or reckless indifference to Plaintiff’s federally

protected rights and as a result there should be an award of punitive damages against

Defendant.

185.

As a result of Defendant’s violations of Plaintiff’s Equal Protection rights,

Plaintiff has suffered damages, including, but not limited to: past and future lost wages,

pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation,

emotional distress, reputational harm, diminishment of career opportunities, and other

harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with Section 1983; (3) reasonable attorneys’ fees in accordance with Section 1983; (4) litigation costs in accordance with Section 1983; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct

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as set forth herein is in violation of Section 1983; (7) punitive damages in accordance with Section 1983; (8) front pay in accordance with Section 1983; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VII HOSTILE WORK ENVIRONMENT IN VIOLATION OF EQUAL PROTECTION CLAUSE
42 U.S.C. § 1983 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

186.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

187.

The Third Circuit has made it clear that harassment can give rise to an equal

protection claim. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1478-79 (3d

Cir. 1990) (upholding verdict for plaintiff on harassment claims against city employees,

based on conclusion that evidence supported finding of purposeful discrimination); see

also Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986)

(“harassment of female employees by a state employer constitutes sex discrimination for

purposes of the equal protection clause of the fourteenth amendment.”); Cheryl L.

Anderson, "Nothing Personal:" Individual Liability under 42 U.S.C. § 1983 for Sexual

Harassment as an Equal Protection Claim, 19 BERKELEY J. EMP. & LAB. L. 60, 80

(1998) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) as support for

argument that harassment can satisfy the intentional discrimination requirement for equal

protection claims).

188.

The Third Circuit has also made clear that a harassment equal protection claim

can be made even if the defendant is not the plaintiff’s supervisor. See Bonenberger v.

Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997).

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189.

Additionally, a plaintiff can show an equal protection violation by a supervisor

who fails properly to address harassment by the plaintiff’s co-workers. Andrews, 895

F.2d at 1479.

190.

A municipal employer can be liable on the theory that it directly encouraged

harassment of the plaintiff, or on the theory that it did not do enough to prevent the

harassment. See Bohen, 799 F.2d at 1187 (“[A] plaintiff can make an ultimate showing of

sex discrimination either by showing that harassment that is attributable to the employer

under § 1983 amounted to intentional sex discrimination or by showing that the

conscious failure of the employer to protect the plaintiff from the abusive conditions

created by fellow employees amounted to intentional discrimination.”); cf. Reynolds v.

Borough of Avalon, 799 F. Supp. 442, 447 (D.N.J. 1992) (holding that “a reasonable jury

might find that the risk of harassment in the workplace is so obvious that an employer's

failure to take action to prevent or stop it from occurring--even in the absence of actual

knowledge of its occurrence--constitutes deliberate indifference, where the employer has

also failed to take any steps to encourage the reporting of such incidents”).

191.

Defendant violated Section 1983 by subjecting Plaintiff to harassment based on

sex and pregnancy.

192.

Defendant’s conduct was not welcomed by Plaintiff.

193.

Defendant’s conduct was so severe or pervasive that a reasonable nursing mother

would find the work environment to be hostile or abusive.

194.

Plaintiff believed her work environment was hostile or abusive as a result of

Defendant’s conduct.

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195.

As a result of the hostile work environment, Plaintiff suffered a “tangible

employment action” defined as a significant change in employment status, failure to

promote, reassignment with significantly different responsibilities, and/or a decision

causing a significant change in benefits.

196.

Defendant failed to exercise reasonable care to prevent harassment in the

workplace by failing to establish an explicit policy against harassment in the workplace

on the basis of sex and pregnancy, failing to fully communicate the policy to their

employees, failing to provide a reasonable way for Plaintiff to make a claim of

harassment to higher management, and failing to take reasonable steps to promptly

correct the harassing behavior raised by Plaintiff.

197.

Defendant acted under color of state law.

198.

Defendant acted with the intent to discriminate.

199.

Defendant acted upon a continuing course of conduct.

200.

Moreover, this case unquestionably involves official policy: the City, the PPD,

and their policymaking officials (1) directed that the violations occur; (2) authorized the

violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided

inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed

policies to prevent the violations.

201.

Defendant acted with malice or reckless indifference to Plaintiff’s federally

protected rights and as a result there should be an award of punitive damages against

Defendant.

202.

As a result of Defendant’s violations of Plaintiff’s Equal Protection rights,

Plaintiff has suffered damages, including, but not limited to: past and future lost wages,

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pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress, reputational harm, diminishment of career opportunities, and other harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with Section 1983; (3) reasonable attorneys’ fees in accordance with Section 1983; (4) litigation costs in accordance with Section 1983; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Section 1983; (7) punitive damages in accordance with Section 1983; (8) front pay in accordance with Section 1983; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VIII RETALIATION IN VIOLATION OF PETITION CLAUSE
42 U.S.C. § 1983 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

203.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

204.

The First Amendment gives persons the right to petition the Government for a

redress of grievances. U.S. Const. amend. I.

205.

“[R]etaliation by a government employer for a public employee’s exercise of the

right of access to the courts may implicate the protections of the Petition Clause.”

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2494 (2011); see also Mack v. Warden

Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (holding that an inmate’s oral grievance is

protected under the Petition Clause).

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206.

To be protected under the First Amendment, speech by a government employee

“must be on a matter of public concern, and the employee's interest in expressing herself

on this matter must not be outweighed by any injury the speech could cause to ‘the

interest of the State, as an employer, in promoting the efficiency of the public services it

performs through its employees.’” Waters v. Churchill, 511 U.S. 661, 668 (1994).

207.

A report of sex-based discrimination or harassment by a government official can

constitute speech on a matter of public concern. See Azzaro v. County of Allegheny, 110

F.3d 968, 975 (3d Cir. 1997) (reasoning that the plaintiff’s reports “brought to light actual

wrongdoing on the part of one exercising public authority.”).

208.

The plaintiff must show a “causal link” between the protected speech and the

adverse employment action. See Azzaro, 110 F.3d at 981 (reversing summary judgment

dismissing First Amendment retaliation claim because there existed “a material dispute of

fact as to whether [plaintiff’s] reports were a motivating factor in the discharge

decision”).

209.

If the plaintiff shows that the decisionmaker was aware of the protected conduct,

then the plaintiff may use the temporal proximity between that knowledge and the

adverse employment action to argue causation. Thomas v. Town of Hammonton, 351

F.3d 108, 114 (3d Cir. 2003).

210.

Here, Plaintiff engaged in activity that was protected by the First Amendment’s

Petition Clause.

211.

Plaintiff’s speech was on a matter of public concern.

212.

Defendant took materially adverse employment actions against Plaintiff for

engaging in protected activity.

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213.

Plaintiff’s protected activity was a substantial or motivating factor in Defendant’s

decisions.

214.

Defendant cannot show any legitimate nondiscriminatory reason for its

employment practices and any reasons proffered by Defendant for its actions against

Plaintiff are pretextual and can readily be disbelieved.

215.

Defendant acted upon a continuing course of conduct.

216.

Moreover, this case unquestionably involves official policy: the City, the PPD,

and their policymaking officials (1) directed that the violations occur; (2) authorized the

violations; (3) agreed to subordinates’ decisions to engage in the violations; (4) provided

inadequate training; (5) provided inadequate supervision; and (6) failed to adopt needed

policies to prevent the violations.

217.

Defendant acted with malice or reckless indifference to Plaintiff’s federally

protected rights and as a result there should be an award of punitive damages against

Defendant.

218.

As a result of Defendant’s violations of Plaintiffs’ Free Speech rights, Plaintiff

has suffered damages, including, but not limited to: past and future lost wages, pain and

suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation,

emotional distress, reputational harm, diminishment of career opportunities, and other

harm, both tangible and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) actual damages; (2) compensatory damages; (3) reasonable attorneys’ fees; (4) litigation costs; (5) pre- and post-judgment interest; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of the

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Case 2:19-cv-05590-MMB Document 6 Filed 02/17/20 Page 44 of 44

 
 Case 2:19-cv-05590-MMB Document 19 Filed 12/12/20 Page 1 of 41

DEREK SMITH LAW GROUP, PLLC IAN M. BRYSON, ESQUIRE Attorney ID No. 321359 1835 Market Street, Suite 2950 Philadelphia, PA 19103 (215) 391-4790 ian@dereksmithlaw.com Attorneys for Plaintiff and the Proposed Class
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANELLE NEWSOME, individually and on behalf of others similarly situated,
Plaintiff,
v.
CITY OF PHILADELPHIA,

Civil Action No. 19-5590
SECOND AMENDED COLLECTIVE ACTION COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF and DAMAGES

Defendant.

NATURE OF THE ACTION 1. Plaintiff Janelle Newsome brings this suit individually and on behalf of others similarly
situated as a collective action seeking all available relief under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq. (“FLSA”) contending that the Philadelphia Police Department has systematically and willfully failed to provide nursing female police officers with “reasonable break time to express breast milk for their nursing children for 1 year after the child’s birth each time such employee has need to express the milk,” and has further failed to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by employees to express breast milk.” 29 U.S.C. § 207(r)(1)(A) and (B).

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2. Plaintiff also brings this action for personal relief from sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963 (“PHRA”); and the Philadelphia Fair Practices Ordinance, Philadelphia Code §§ 9-1101 et seq. (“PFPO”).
3. Plaintiff seeks injunctive and declaratory relief, compensatory damages, punitive damages, liquidated damages, statutory penalties, reasonable attorneys’ fees, litigation costs and pre- and post-judgment interest.
JURISDICTION AND VENUE 4. This Court has jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C §§ 1331
and 1343. 5. The Court has supplemental jurisdiction over Plaintiff’s PHRA and PFPO claims
pursuant to 28 U.S.C. § 1367 because they arise out of the same nucleus of operative facts as Plaintiff’s FLSA and Title VII claims. 6. Plaintiff’s action for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this Court. 7. Venue in this Court is proper under 28 U.S.C. § 1391(b) because a substantial part of the acts or omissions giving rise to the claims alleged herein occurred within this judicial district, and Defendant is subject to personal jurisdiction here.
PARTIES 8. Plaintiff Janelle Newsome is an adult individual resident of Philadelphia County and a
citizen of the Commonwealth of Pennsylvania. Pursuant to Section 216(b) of the FLSA,
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Plaintiff has consented in writing to be a party in this action. Her executed Consent to Sue form is attached hereto as Exhibit “A.” 9. Defendant City of Philadelphia (“the City”) is a municipality of the Commonwealth of Pennsylvania. The City owns, operates, manages, directs and controls the Philadelphia Police Department (“the PPD”), whose agents, servants and employees at all relevant times were acting within the course and scope of their employment under color of state law and operating pursuant to official policies, customs or practices of the City and the PPD. 10. Plaintiff was an “employee” and Defendant was an “employer” covered by the FLSA and Title VII.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 11. Ms. Newsome timely filed charges of discrimination with the U.S. Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”) alleging violations of Title VII, the PHRA, and the PFPO. 12. EEOC issued Ms. Newsome a Notice of Right to Sue Within 90 Days. Additionally, more than one year has elapsed since PHRC assumed jurisdiction over Plaintiff’s charges and therefore her PHRA and PFPO claims are now ripe. 13. Ms. Newsome has timely filed this action and has complied with all administrative prerequisites to bring this lawsuit.
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FLSA COLLECTIVE ACTION ALLEGATIONS 14. On August 20, 2019 Philadelphia Mayor Jim Kenney announced the abrupt resignation of
Police Commissioner Richard Ross Jr. amid reports of discrimination within the police department.1 15. “Last summer, the City implemented a new sexual harassment prevention policy and a series of internal reforms designed to prevent workplace discrimination and harassment throughout the government. While rolling out a new policy understandably takes time, I do not believe the Police Department has taken the necessary actions to address the underlying cultural issues that too often negatively impact women . . .”2 16. The PPD employs over 6300 sworn members, approximately 35% of which are women. 17. There are eleven different ranks in the PPD in the following order, beginning at the entry level position of Police Officer and ending with Police Commissioner: (1) Police Officer; (2) Detective; (3) Corporal; (4) Sergeant; (5) Lieutenant; (6) Captain; (7) Staff Inspector; (8) Inspector; (9) Chief Inspector; (10) Deputy Commissioner; and (11) Commissioner. The City’s Office of Human Resources provides the following job class specification for Police Officer:
GENERAL DEFINITION This is general duty police work on an assigned shift involving the protection of life and property, enforcement of laws, and investigation of crimes. Work is performed under the supervision of a police officer of higher rank. The employee has a controlling impact on the prevention of crime within an assigned area. Work requires regular exposure to uncontrolled and/or unpredictable conditions and the frequent exercise of moderate physical effort. The essential functions and tasks required for the position of police officer, include, but are not limited to, qualification and use of firearms, patrolling and apprehension of suspects.
1 Office of the Mayor, Mayor Announces Resignation of PPD Commissioner Richard Ross, Jr., https://www.phila.gov/2019-08-20-mayor-announces-resignation-of-ppd-commissioner-richard-ross-jr/ 2 Id.
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Employees in this class must also comply with Commonwealth municipal police officer certification requirements
ALLOCATING FACTORS
Positions in this class must be able to perform the essential and physical functions of the job.
TYPICAL EXAMPLES OF WORK
Patrols a designated area of the city, on foot, bicycle, segway or horseback, or in a car, motorcycle, or police boat to prevent and discover the commission of crime and to enforce traffic and parking regulations; answers calls and complaints, taking the necessary police action.
Takes proper police action at scene of crime, administers first aid, gathers evidence, locates witnesses and makes arrest; appears in court to present evidence and testify against persons accused of crimes.
Investigates persons suspected of being engaged in gambling, illegal sale of liquors, or other vice activities; checks the operation of taverns, poolrooms, dance halls, clubs, and similar establishments for compliance with laws and ordinances.
Ascertains validity of information or secures evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants, and witnesses, takes information or secures evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants and witnesses to obtain information about crimes; reports automobile accidents, interviews witnesses, takes information, and makes detailed reports.
Investigates complaints concerning juveniles; discusses the case with complainant, juvenile, parents and others who may be able to aid in the case; investigates crimes by and against juveniles; testifies in court concerning case, visits neighborhood boys’ clubs and recreation centers, counseling leaders on juvenile problems.
Writes detailed reports of automobile accidents in cases where personal injuries or property damage is apparent.
Works with community residents, business owners and other City employees to solve problems of crime and disorder.
Performs all duties and responsibilities at the highest level of personal and professional ethics.
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Uses computer systems to identify crime patterns, analyzes the nature of crime and disorders, problems and obtains information relevant to crime control and prevention.
May serve in the district operations office to perform necessary clerical procedures connected with police work.
Performs related work as required.
REQUIRED KNOWLEDGE, SKILLS AND ABILITIES
KNOWLEDGE OF:
• the use, care and safe handling of firearms and other equipment used in the performance of essential tasks;
• the laws controlling, and the procedures, practices and techniques necessary to police patrol operations;
• the laws, codes, statutes and regulations concerning criminal activity, especially when they apply to law enforcement operations;
• the criminal justice system as it applies to law enforcement operations; • the techniques, practice and procedures necessary to the effective
interaction with the general public, victims, suspects, and officers of other agencies and municipalities; and • duty manuals, departmental organizations, administrative direction and applicable City ordinances.
SKILL IN:
• the use and care of firearms and other equipment used in the performance of essential tasks
ABILITY TO:
• cope with situations firmly, courteously, tactfully and with respect for the rights of others;
• analyze situations quickly and objectively, and to determine a proper course of action to be taken;
• understand and carry out oral and written instructions; • write and speak effectively; • learn clerical procedures connected with police work; • make arrests; • take necessary police action to prevent the commission of a crime, including
use of a firearm where needed; • patrol streets on foot; • respond to emergency situations; • use firearms and other weapons as needed; • operate equipment in the performance of essential tasks;
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• perform the essential and physical functions of the job; • identify, analyze and respond to crime and disorder problems; and • use computer systems to obtain necessary information in the performance
of the position. MINIMUM ACCEPTABLE TRAINING AND EXPERIENCE
For employees hired from eligible lists for Police Officer Recruit initially established before 2012:
EDUCATION: Education equivalent to standard high school.
AND
TRAINING: Recent successful completion of training as a Police Officer Recruit at the City of Philadelphia Police Academy.
OR
CERTIFICATION: Possession of Pennsylvania Municipal Police Officers’ Certification from the Pennsylvania Municipal Police Officers Education and Training Commission prior to appointment and during tenure of employment as a Police Officer 1.
For employees hired from eligible lists for Police Officer Recruit initially established during or after 2012 or from Police Officer 1 eligible lists initially established during or after 2011:
Option 1
TRAINING: Recent successful completion of training as a Police Officer Recruit at the City of Philadelphia Police Academy.
OR
Option 2
EDUCATION: Education equivalent to completion of a standard high school.
AND
EXPERIENCE: One year of full time employment as a commonwealth or state certified Law Enforcement Officer which has been within the three year period immediately prior to the thirtieth (30) day after the last date for filing applications for the examination for this class.
AND
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CERTIFICATION: Possession of a commonwealth or state Law Enforcement Officers’ Certification. PHYSICAL AND MEDICAL REQUIREMENTS Ability to meet the physical and medical standards approved for this class. Age—Must have reached Nineteenth (19th) Birthday as of the date of appointment. LICENSES, REGISTRATIONS AND/OR CERTIFICATES Possession of Pennsylvania Municipal Police Officers’ Certification from the Pennsylvania Municipal Police Officers Education and Training Commission prior to appointment and during tenure of employment as a Police Officer 1. Initial and annual qualification on a police firearms course, by a certified police firearms instructor, with any firearms, shotguns, rifles authorized for use including personal weapons carried in lieu of issued weapons or as a second weapon. Possession of a valid proper class motor vehicle operator's license as issued by the Commonwealth of Pennsylvania within 60 days of establishing Pennsylvania residency and during tenure of employment as a Police Officer 1. Preferred License Possession of a valid proper class motor vehicle operator's license from any state at least three years prior to appointment as a Police Officer 1. See City of Philadelphia Office of Human Resources Personnel Job Class Specifications, Police Officer 1, https://www.phila.gov/personnel/specs/6A02.htm
18. Pursuant to 29 U.S.C. §§ 216(b) and 207(r) of the FLSA, Ms. Newsome brings this action individually and on behalf of other similarly situated female Police Officers employed by the PPD during the past three years who were or continue to be denied their rights under the FLSA’s “Break Time for Nursing Mothers” provision, which requires employers to provide (1) “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk”; and (2) “a place, other than a bathroom, that is shielded from view and free from
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intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(A) and (B). 19. The members of the putative class are hereinafter referred to as “Collective Class Plaintiffs.” 20. Plaintiff estimates that there are in excess of 500 other similarly situated Collective Class Plaintiffs who are working or worked for the PPD and are or were unlawfully denied their rights under the FLSA’s Break Time for Nursing Mothers provision, 29 U.S.C. § 207(r). 21. The precise number of employees can be easily ascertained by Defendant. These employees can be identified and located using Defendant’s payroll and personnel records. Potential Collective Class Plaintiffs may be informed of the pendency of this Collective Action by direct mail and/or publication. 22. Pursuant to 29 U.S.C. § 216(b), this action is properly maintained as a collective action because all class members are similarly situated. Plaintiff and other similarly situated female Police Officers (1) were and continue to be similarly denied reasonable break time to express breast milk for their nursing children for 1 year after birth each time the need arises, and also denied a private place, other than a bathroom, to do so; (2) had the same or substantially similar job classifications and duties; and (3) are subject to the same uniform policies, business practices, payroll practices, and operating procedures. 23. Further, Defendant’s willful policies and practices, which are discussed more fully below, whereby Defendant denied and continues to deny Plaintiff and Collective Class Plaintiffs their rights under the FLSA’s Break Time for Nursing Mothers provision, affected and continue to affect Plaintiff and Collective Class Plaintiffs in the same fashion.
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24. In violation of the FLSA, Defendant fails to provide Plaintiff and Collective Class Plaintiffs “reasonable break time to express breast milk for [their] nursing child[ren] for 1 year after the child’s birth each time such employee has need to express the milk.” 29 U.S.C. § 207(r)(1)(A) and (B).
25. In violation of the FLSA, Defendant also fails to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by [Plaintiff and Collective Class Plaintiffs] to express breast milk.” 29 U.S.C. § 207(r)(1)(B).
26. In violation of the FLSA, Defendant also fails to post notices explaining the Act in conspicuous places in every establishment where its police officers are employed so as to permit them to observe readily a copy. 29 CFR § 516.4.
27. These policies and practices are unequivocal evidence of Defendant’s systematic, willful and improper failure to follow the provisions of the FLSA.
28. Plaintiff will request the Court to authorize notice to all current and former similarly situated female Police Officers employed by the PPD in the last three years to inform them of the pendency of this action and their right to “opt in” to this lawsuit pursuant to 29 U.S.C. § 216(b) for the purpose of seeking actual damages, liquidated damages, attorneys’ fees, litigation costs, declaratory and injunctive relief, employment consistent with the FLSA, and all other relief available. DECLARATORY RELIEF ALLEGATIONS
29. This lawsuit presents an actual controversy between Plaintiff and Collective Class Plaintiffs against Defendant concerning their rights and respective duties.
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30. While there is a dearth of cases that discuss the appropriateness of a claim for declaratory relief in an FLSA case, the Supreme Court found in Public Affairs Associates v. Rickover, 369 U.S. 111 (1962) that the Declaratory Judgment Act authorizes federal courts to make declarations of rights as to impending conduct on a discretionary basis. 369 U.S. at 112; see also Salazar-Martinez v. Fowler Brothers, Inc., 2011 WL 915675 (W.D.N.Y. Mar. 15, 20l1) (denying motion to dismiss declaratory relief count in an FLSA case).
31. Plaintiff and Collective Class Plaintiffs face continuing harm during employment by Defendant.
32. Declaratory relief is therefore necessary and appropriate. INJUNCTIVE RELIEF ALLEGATIONS
33. If Defendant’s conduct is allowed to continue Plaintiff and Collective Class Plaintiffs will be subject to significant and irreparable harm to their federally protected rights for which no adequate remedy at law exists.
34. By depriving Plaintiff and Collective Class Plaintiffs of employment consistent with the FLSA, Title VII, the PHRA and the PFPO, Defendant will inflict significant and irreparable medical, emotional, dignitary, and other harms for which no adequate remedy at law exists.
35. Injunctive relief is therefore necessary and appropriate. FACTUAL BACKGROUND
36. The PPD has no policy or directive in place to provide basic accommodations for breastfeeding mothers like Ms. Newsome.
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37. The PPD does not provide accommodations for nursing mothers like Ms. Newsome—it does not provide time for women to express milk, nor does it provide private space that is not a bathroom each time women need to pump.
38. The PPD does not provide notice of nursing mothers’ rights. 39. On December 22, 2014, Ms. Newsome started working for the PPD as a Police Officer
assigned to the 18th District. 40. In July 2018, Ms. Newsome gave birth to her child. 41. In January 2019, Ms. Newsome returned to work from leave and was detailed to the
PPD’s Neighborhood Services Unit on restricted duty. She was still nursing her infant child and expected to do so until her child reached age one in July 2019. 42. Upon returning to work, Ms. Newsome experienced ongoing pregnancy discrimination, harassment and retaliation regarding her need to express milk at work. 43. Defendant denied Ms. Newsome reasonable break time to express breast milk for her nursing child for 1 year after the child’s birth each time she had the need to express the milk. 44. Defendant also denied Ms. Newsome a private place, other than a bathroom, that was shielded from view and free from intrusion from coworkers and the public that she could use to express breast milk. 45. When Ms. Newsome arrived at the Neighborhood Services Unit, she informed her supervisor, Sergeant Herbert Gibbons, that she would need to pump at work and requested accommodations. Because the PPD does not provide accommodations for nursing mothers, Sergeant Gibbons failed to apprise Ms. Newsome of her right to take time to express milk in a private space each time she needed to pump. Rather, Sergeant
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Gibbons stated, “We’ll figure something out,” and at no time thereafter did Defendant provide accommodations for Ms. Newsome. 46. As a result, Ms. Newsome was forced to express milk at irregular times or not at all; and had to pump in unsanitary bathrooms and locker rooms, or in places where she was constantly interrupted and embarrassed by coworkers. 47. For example, Ms. Newsome attempted to pump in an office that was frequently used by the building’s all-male tech crew, who stated “we’re going to be in here for a while.” Occasionally, when the room was vacant, Ms. Newsome was interrupted by the all-male tech crew who frequently knocked on the door; asked, “When are you going to be done?” 48. Unreasonably frequent interruptions rendered it difficult or impossible for Ms. Newsome to express milk and restricted the amount of time she was permitted to do so. 49. Moreover, unreasonably frequent interruptions restricted Ms. Newsome’s right to be free from intrusion from coworkers while pumping. 50. As a result, Ms. Newsome was frequently forced to pump in the restroom or was unable to pump at all. 51. By way of further example, on another occasion, Sergeant Gibbons instructed Ms. Newsome and another nursing mother—Officer Jennifer Allen—to “pump in Officer John Whipple’s office.” The same day, or shortly thereafter, Ms. Newsome and Officer Allen were asked, “Were you notified that you had to start pumping in Mary’s (a civilian coworker) office?” Ms. Newsome and Officer Allen were also told “You should pump at the same time in the same room.” 52. Upon hearing this, Ms. Newsome became concerned that her supervisors and coworkers did not support her need to pump at work and that her ability to do so was in jeopardy.
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Ms. Newsome and other nursing mothers rely on a positive, accepting attitude from supervisors and coworkers to feel confident in the ability to continue working while breastfeeding. Ms. Newsome and other nursing mothers also rely on consistent availability of a private space to pump. These accommodations are not provided by the PPD. 53. Defendant’s request that Ms. Newsome and other nursing mothers “pump at the same time in the same room” violates the FLSA’s requirement that the lactation space be private, shielded from view and free from intrusion from coworkers. 54. By way of further example, on another occasion, another police officer, Officer Martin, told Ms. Newsome and Officer Allen that “people need to get into the office you’re pumping in during the time that you pump,” and directed them to “pump in Mary’s office from now on.” Mary told Ms. Newsome and Officer Allen to look for a different place to pump. 55. The unavailability of a designated lactation space restricted Ms. Newsome’s right to express milk each time she had the need to express the milk. 56. By way of further example, on another occasion, Sergeant Gibbons told Ms. Newsome and Officer Allen that if they wanted privacy they would need to retrieve a privacy sign from an office occupied by three male officers each time they needed to pump and return the sign to the three male officers each time they were finished. Ms. Newsome and Officer Allen found this arrangement to be extremely demeaning. They asked Sergeant Gibbons if they could store the sign in a female coworker’s office and Sergeant Gibbons said he “doesn’t want to hear Mary making a big fuss about the sign,” and that he “wants to avoid hearing her mouth.”
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57. By way of further example, on another occasion, Ms. Newsome, Officer Allen and Officer Tanya Richardson approached Sergeant Gibbons about their coworkers’ frequent interruptions and negative statements regarding their need to express milk at work. They requested that Sergeant Gibbons address the issue with their coworkers. In response, Sergeant Gibbons stated, “I won’t address it with anyone because I would be kicked out of the unit.” He further stated, “Anytime I have spoken up before I was backstabbed and given 18’s (disciplined).”
58. These frequent negative interactions regarding Ms. Newsome’s and Officer Allen’s rights caused both women to cry at work on several occasions. Because Defendant subjected Ms. Newsome to consistent ridicule and embarrassment she was unable to express milk for her nursing child each time she needed to express the milk.
59. Moreover, supervisor Sergeant Gibbons’ statement that he would be disciplined for accommodating the needs of nursing mothers is just one example of the PPD’s policy and practice of violating the rights of nursing mothers.
60. By way of further example, on another occasion, Sergeant Gibbons lied to Ms. Newsome and Officer Allen stating, “Effective immediately you will pump in Mary’s office, a permanent sign will be made that will hang on the door, and you will each have keys to the office. You can pump whenever you want to.” This conversation occurred in lateApril 2019, approximately 4 months after Ms. Newsome had returned to work from leave. The accommodations Sergeant Gibbons promised were never put into place. Ms. Newsome and Officer Allen asked Sergeant Gibbons “if Mary had been notified that we were to pump in her office,” and Sergeant Gibbons said “yes.” However, when Ms. Newsome and Officer Allen attempted to use Mary’s office, Mary stated, “I have work to
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do, you have to use another office.” Officer Allen informed Sergeant Gibbons that “Mary said we can’t use her office,” and Sergeant Gibbons responded, “she has to,” but took no further action to remedy the situation. He did not provide Ms. Newsome and Officer Allen with keys or a permanent sign as he had promised. He did not instruct Mary to allow the women to pump in her office. 61. By way of further example, on another occasion, Ms. Newsome and Officer Allen again complained to Sergeant Gibbons that they had not been given the basic accommodations that he had promised. Ms. Newsome stated, “You said provisions would be made for us.” In response, Sergeant Gibbons said, “By law, I only have to give you 10 minutes.” Ms. Newsome responded, “10 minutes is not long enough to begin the flow of milk—it could take me up to 30 minutes.” Sergeant Gibbons changed the subject and failed to provide accommodations. Sergeant Gibbons implied by his words and actions that he would continue to refuse to provide Ms. Newsome accommodations consistent with the FLSA. 62. By way of further example, around April 29, 2019, Ms. Newsome and Officer Allen were instructed to pump in the building’s unsanitary lunchroom during lunch hour. Ms. Newsome was exposed to incessant interruptions by coworkers attempting to gain access to the lunchroom during their lunch hour who started gathering outside, knocking on the door and asking, “What’s going on in there?” 63. When Ms. Newsome opened the door to the lunch room, one employee who had been waiting outside said “FINALLY” and groaned. The employee then asked Ms. Newsome, “Can I come in when you’re pumping because I’m a woman?” 64. The PPD is responsible for alerting employees about the employer’s worksite lactation program (which the PPD does not have) and for negotiating policies and practices to help
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facilitate each employee’s infant feeding goals. Defendant failed to meet these requirements. 65. The PPD is responsible for knowing exactly how to support employees like Ms. Newsome, including educating all staff about the importance of respecting a coworker’s privacy while pumping and providing coverage during lactation breaks. Defendant failed to meet these requirements. 66. The PPD is responsible for ensuring that all employees will assist in providing a positive atmosphere of support for breastfeeding employees like Ms. Newsome. Defendant failed to meet these requirements. 67. The PPD’s ongoing failure to provide Ms. Newsome with consistent, private and sanitary lactation space caused her extreme anxiety and uncertainty about her ability to continue breastfeeding her child. Breastfeeding and working takes a lot of time, coordination and dedication from a mother. A lactation space is necessary because in order to begin the flow of milk, mothers must be able to sit down and relax, and not be stressed. Mothers such as Ms. Newsome who are placed in an open or uncomfortable space, or who are worried about hostility from coworkers, may not be able to pump milk or may not be able to pump milk as quickly. 68. As a result of the PPD’s failure to designate private, sanitary rooms for nursing employees like Ms. Newsome to express breast milk at work, Ms. Newsome was forced to stop pumping at work altogether. For the next several months she could only pump at nighttime when she arrived home from work. 69. On several occasions, Ms. Newsome was forced to take sick leave to pump at home. 70. Officer Allen also was forced to stop pumping at work and took leave to pump at home.
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71. After Ms. Newsome asserted her rights under the FLSA, the PPD retaliated. 72. In December 2019, in close temporal proximity to when Ms. Newsome filed an EEOC
charge and a federal lawsuit, Defendant denied several requests for an extension of her restricted duty status (she was on restricted duty as a result of a head injury she had suffered on the job). 73. From approximately January 8, 2020 to January 15, 2020, Defendant sent Ms. Newsome home from work without pay. 74. Between approximately January 16, 2020 to January 27, 2020, Ms. Newsome attempted to return to work, however Defendant sent her home without pay approximately every 2 to 3 days. 75. From approximately January 27, 2020 to February 12, 2020, Defendant again sent Ms. Newsome home from work without pay. 76. In February 2020, Defendant placed Ms. Newsome on “no duty” status without pay. 77. Defendant forced Ms. Newsome to use her accrued personal time during the time periods mentioned above when Defendant forced Ms. Newsome to stay home from work without pay. 78. Defendant notified Ms. Newsome that as a result of the above, her accrued personal time is now 59 hours into the negative. 79. Moreover, after Ms. Newsome filed her lawsuit, coworkers and supervisors in the Neighborhood Services Unit ostracized, stigmatized and ignored her. 80. Ms. Newsome was labeled a “troublemaker” after she filed her lawsuit. 81. On or about February 28, 2020, Defendant placed Ms. Newsome on “no duty” status without pay. To date, Plaintiff remains out of work without pay.
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82. The above are also some examples of the unlawful discrimination, harassment and retaliation that Ms. Newsome personally suffered at the hands of Defendant.
83. Defendant discriminated against Ms. Newsome in the terms and conditions of her employment because of her sex characteristics.
84. Defendant retaliated against Ms. Newsome because she reported or otherwise opposed Defendant’s illegal conduct.
85. Defendant subjected Ms. Newsome to harassment and a hostile work environment based on sex and retaliation.
86. Ms. Newsome claims a continuous practice of discrimination and makes all claims herein under the continuing violations doctrine.
87. As a result of Defendant’s unlawful discrimination, harassment and retaliation, Ms. Newsome has suffered ongoing emotional distress.
88. Upon information and belief, the discrimination and retaliation will continue and Plaintiff hereby makes a claim for all continuing harassment and retaliation.
89. In 2011, Surgeon General Regina Benjamin issued a Call to Action to Support Breastfeeding (“Call to Action”), which identified employment as a significant barrier for women to meet their breastfeeding goals.3
90. Breast milk is well recognized as the optimal source of nutrition for infants and it provides numerous protections against illnesses and diseases for infants and mothers alike.
3 U.S. Department of Health and Human Services. The Surgeon General’s Call to Action to Support Breastfeeding. Washington, DC: U.S. Department of Health and Human Services, Office of the Surgeon General; 2011.
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91. Infants who are not breastfed or who are weaned early are more likely to suffer common childhood infections such as gastrointestinal infections and acute otitis media, as well as lower respiratory infections and sudden infant death syndrome.4
92. Furthermore, breastfed infants are less likely to be overweight or have diabetes later in life and mothers who breastfeed are less likely to develop breast and ovarian cancer.5
93. Increased duration of lactation is also associated with a lower prevalence of hypertension, diabetes, and cardiovascular disease in women.6
94. The majority of mothers in the United States want to breastfeed and most (80%) start breastfeeding.7
95. Although breastfeeding initiation and duration have consistently improved, one study revealed that 60% of women do not meet their breastfeeding goals.8
96. Mothers face a range of potential barriers to breastfeeding, including lack of support from employers.9
4 Ip S, Chung M, Raman G, et al. Breastfeeding and maternal and infant health outcomes in developed countries. Evid Rep Technol Assess. 2007:1–186. 5 Victora CG, Bahl R, Barros AJ, et al. Breastfeeding in the 21st century: Epidemiology, mechanisms, and lifelong effect. Lancet (London, England) 2016;387:475–490. 6 Schwarz EB, Ray RM, Stuebe AM, et al. Duration of lactation and risk factors for maternal cardiovascular disease. Obstet Gynecol. 2009;113:974–982. 7 Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Nutrition, physical activity and obesity data, trends and maps web site. 2015 Available at: https://nccd.cdc.gov/NPAO_DTM. Accessed February 17, 2020. 8 Odom EC, Li R, Scanlon KS, Perrine CG, Grummer-Strawn L. Reasons for earlier than desired cessation of breastfeeding. Pediatrics. 2013;131:e726–e732. 9 U.S. Department of Health and Human Services. The Surgeon General’s Call to Action to Support Breastfeeding. Washington, DC: U.S. Department of Health and Human Services, Office of the Surgeon General; 2011.
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97. Employed mothers are less likely to initiate breastfeeding and more likely to stop

breastfeeding earlier than mothers who are not employed.10

98. Employed mothers who are breastfeeding face a number of challenges such as inflexible

work schedules and a lack of privacy to express their milk and unsupportive employers.

99. The impact of Defendant’s failure to comply with the requirements of the FLSA will fall

disproportionally on female police officers.

100.

As a result of Defendant’s violations of the law, Plaintiff and Collective Class

Plaintiffs were subjected to employment inconsistent with the FLSA.

101.

As a result, Plaintiff and Collective Class Plaintiffs have suffered damages and

will continue to be irreparably harmed.

COUNT I VIOLATIONS OF FLSA PROTECTIONS FOR NURSING MOTHERS
29 U.S.C. § 207(r) Plaintiff and Collective Class Plaintiffs v. Defendant City of Philadelphia

102.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

103.

Section 4207 of the Patient Protection and Affordable Care Act (“ACA”), which

amended Section 7 of the FLSA, 29 U.S.C. § 207, requires employers to provide

“reasonable break time for an employee to express breast milk for her nursing child for 1

year after the child’s birth each time such employee has need to express the milk.” 29

U.S.C. § 207(r)(1)(A).

104.

The law further requires employers to provide “a place, other than a bathroom,

that is shielded from view and free from intrusion from coworkers and the public, which

may be used by an employee to express breast milk.” 29 U.S.C. § 207(r)(1)(B).

10 Mirkovic KR, Perrine CG, Scanlon KS, Grummer-Strawn LM. In the United States, a mother’s plans for infant feeding are associated with her plans for employment. J Hum Lact. 2014;30:292–297.
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105.

The FLSA and the “Break Time for Nursing Mothers” provision cover all public

agency employees of a State, a political subdivision of a State, or an interstate

government agency. 29 U.S.C. § 203(s)(1)(C).

106.

The FLSA defines “employer” as “any person acting directly or indirectly in the

interest of an employer in relation to an employee, including individual supervisors and

management officials. 29 U.S.C. § 203(d).

107.

Defendant violated Plaintiff and Collective Class Plaintiffs’ rights under the

FLSA by (1) failing to provide reasonable break time for Plaintiff and Collective Class

Plaintiffs to “express breast milk for her nursing child for 1 year after the child’s birth

each time she had a need to express the milk”; and (2) failing to provide Plaintiff and

Collective Class Plaintiffs “a place, other than a bathroom, that is shielded from view and

free from intrusion from coworkers and the public, which may be used to express breast

milk.”

108.

The foregoing actions, policies and practices of Defendant violate the FLSA.

109.

Defendant’s actions were willful, in bad faith and in reckless disregard of clearly

applicable FLSA provisions.

110.

The FLSA provides, “Any employer who violates the provisions of section

215(a)(3) of this title shall be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3) of this title, including without

limitation employment, reinstatement, promotion, and the payment of wages lost and an

additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

111.

“Although it does not appear that the Third Circuit has addressed the issue, at

least six other circuit courts of appeals have affirmed cases where, in addition to an equal

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amount in liquidated damages, a plaintiff sought to recover non-economic damages, such

as emotional distress damages.” Green v. Ventnor Beauty Supply, Inc., 2019 WL

2099821 at n.1 (D.N.J. May 14, 2019) (citing Pineda v. JTCH Apartments, L.L.C., 843

F.3d 1062, 1065 (5th Cir. 2016) (citing the First, Sixth, Seventh, Eighth, and Ninth

Circuits and noting “the uniform view of our sister circuits that damages for emotional

distress are available” under the FLSA)).

112.

A plaintiff is also entitled to “a reasonable attorney’s fee to be paid by the

defendant, and costs of the action.” Id.

113.

Defendant is liable to Plaintiff and Collective Class Plaintiffs for actual damages,

liquidated damages and other relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable

attorneys’ fees, costs and expenses.

WHEREFORE, Plaintiff prays for the following relief on behalf of herself and Collective Class Plaintiffs:

a. An Order from this Court permitting this litigation to proceed as a collective action pursuant to 29 U.S.C. § 216(b);
b. An Order from this Court ordering Defendant to file with this Court and furnish to the undersigned counsel a list of all names and addresses of all female Police Officers who have worked for Defendant during the preceding three years, and authorizing Plaintiff’s counsel to issue a notice at the earliest possible time to these individuals, informing them that this action has been filed, of the nature of the action, and of their right to opt in to this lawsuit if they worked for Defendant during the liability period, but were or continue to be denied their rights under the Break Time for Nursing Mothers provision of the FLSA;
c. Adjudicating and declaring that Defendant’s conduct as set forth herein and above is in violation of the FLSA;
d. Adjudicating and declaring that Defendant violated the FLSA by failing to provide reasonable break time and private, sanitary lactation space for nursing mothers;

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e. Awarding Plaintiff and Collective Class Plaintiffs damages in an amount consistent with the FLSA;

f. Awarding Plaintiff and Collective Class Plaintiffs liquidated damages in accordance with the FLSA;

g. Awarding Plaintiff reasonable attorneys’ fees and all costs of this action, to be paid by Defendant, in accordance with the FLSA;

h. Awarding pre- and post-judgment interest and court costs as further allowed by law;

i. Granting Plaintiff and Collective Class Plaintiffs leave to add additional plaintiffs by motion, the filing of written opt in consent forms, or any other method approved by the Court; and

j. For all additional general and equitable relief to which Plaintiff and Collective Class Plaintiffs are entitled.

COUNT II FLSA RETALIATION
29 U.S.C. § 215 Plaintiff v. Defendant City of Philadelphia

112.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

113.

The FLSA prohibits retaliation by employers against employees for asserting their

rights under the Act. 29 U.S.C. § 215(a)(3).

114.

Defendant violated the FLSA’s anti-relation provision when it took materially

adverse employment actions against Plaintiff for asserting her rights under the Break

Time for Nursing Mothers law.

115.

Because Plaintiff asserted her rights under the FLSA, Defendant retaliated against

her by denying her extensions of her restricted duty status, sending her home from work

without pay, placing her on leave without pay, forcing her to use her accrued personal

time to account for these hours when she was sent home without pay, denouncing her

reputation, stigmatizing her, and placing Plaintiff on “no duty” status in late February

2020.

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116.

Plaintiff will rely on a broad array of evidence to demonstrate a causal link

between her protected activity and the City’s actions taken against her, such as the

unusually suggestive proximity in time between events, as well as Defendant’s

antagonism and change in demeanor toward Plaintiff after Defendant became aware of

Plaintiff’s protected activity.

117.

The FLSA provides, “Any employer who violates the provisions of section

215(a)(3) of this title shall be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3) of this title, including without

limitation employment, reinstatement, promotion, and the payment of wages lost and an

additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

118.

“Although it does not appear that the Third Circuit has addressed the issue, at

least six other circuit courts of appeals have affirmed cases where, in addition to an equal

amount in liquidated damages, a plaintiff sought to recover non-economic damages, such

as emotional distress damages.” Green v. Ventnor Beauty Supply, Inc., 2019 WL

2099821 at n.1 (D.N.J. May 14, 2019) (citing Pineda v. JTCH Apartments, L.L.C., 843

F.3d 1062, 1065 (5th Cir. 2016) (citing the First, Sixth, Seventh, Eighth, and Ninth

Circuits and noting “the uniform view of our sister circuits that damages for emotional

distress are available” under the FLSA)).

119.

A plaintiff is also entitled to “a reasonable attorney’s fee to be paid by the

defendant, and costs of the action.” Id.

120.

Defendant is liable to Plaintiff and Collective Class Plaintiffs for actual damages,

liquidated damages and other relief, pursuant to 29 U.S.C. § 216(b), as well as reasonable

attorneys’ fees, costs and expenses.

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WHEREFORE, Plaintiff prays for the following relief on behalf of herself and Collective
Class Plaintiffs:
a. An Order from this Court permitting this litigation to proceed as a collective action pursuant to 29 U.S.C. § 216(b);
b. An Order from this Court ordering Defendant to file with this Court and furnish to the undersigned counsel a list of all names and addresses of all female Police Officers who have worked for Defendant during the preceding three years, and authorizing Plaintiff’s counsel to issue a notice at the earliest possible time to these individuals, informing them that this action has been filed, of the nature of the action, and of their right to opt in to this lawsuit if they worked for Defendant during the liability period, but were or continue to be denied their rights under the Break Time for Nursing Mothers provision of the FLSA;
c. Adjudicating and declaring that Defendant’s conduct as set forth herein and above is in violation of the FLSA;
d. Adjudicating and declaring that Defendant violated the FLSA by retaliating against employees who asserted their rights to reasonable break time and private, sanitary lactation space;
e. Awarding Plaintiff and Collective Class Plaintiffs damages in an amount consistent with the FLSA;
f. Awarding Plaintiff and Collective Class Plaintiffs liquidated damages in accordance with the FLSA;
g. Awarding Plaintiff reasonable attorneys’ fees and all costs of this action, to be paid by Defendant, in accordance with the FLSA;
h. Awarding pre- and post-judgment interest and court costs as further allowed by law;
i. Granting Plaintiff and Collective Class Plaintiffs leave to add additional plaintiffs by motion, the filing of written opt in consent forms, or any other method approved by the Court; and
j. For all additional general and equitable relief to which Plaintiff and Collective Class Plaintiffs are entitled.
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COUNT III TITLE VII DISPARATE TREATMENT
42 U.S.C. § 2000e-2 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

122.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

123.

Title VII provides, in relevant part, that “it shall be an unlawful employment

practice for an employer . . . to discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment, because of [her] race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

124.

Title VII further provides that “it shall be an unlawful employment practice for

any employer . . . controlling . . . training or retraining, including on-the-job training

programs to discriminate against any individual because of [her] race, color, religion, sex,

or national origin in admission to, or employment in, any program established to provide

. . . training.” 42 U.S.C. § 2000e-2(d).

125.

In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076,

which added new language to Title VII’s definitions subsection to specify that Title VII’s

“ter[m] ‘because of sex’ . . . include[s] . . . because of or on the basis of pregnancy,

childbirth, or related medical conditions.; and women affected by pregnancy, childbirth,

or related medical conditions shall be treated the same for all employment-related

purposes . . . as other persons not so affected but similar in their ability or inability to

work.” 42 U.S.C. § 2000e(k); Young v. United Parcel Serv., Inc., 135 S. Ct. 1344-45

(2015) (explaining “that the denial of an accommodation constituted disparate treatment

under the Pregnancy Discrimination Act.”).

126.

Title VII further provides that “un unlawful employment practice is established

when the complaining party demonstrates that race, color, religion, sex, or national origin

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was a motivating factor for any employment practice, even though other factors also

motivated the practice.” 42 U.S.C. § 2000e-2(m).

127.

The City engaged in unlawful employment practices prohibited by Title VII by

intentionally discriminating against Plaintiff with respect to her compensation, terms,

conditions, training and privileges of employment because of her sex and pregnancy.

128.

The City subjected Plaintiff to adverse tangible employment actions—defined as

significant changes in Plaintiff’s employment status, discipline, denial of training, failure

to promote, reassignment with significantly different job responsibilities, and decisions

causing changes in significant changes in her employment benefits.

129.

Plaintiff’s protected characteristics (sex and pregnancy) played a determinative

factor in the City’s decisions.

130.

The City cannot show any legitimate nondiscriminatory reasons for its

employment practices and any reasons proffered by the City for its actions against

Plaintiff are pretextual and can readily be disbelieved.

131.

Alternatively, Plaintiff’s protected status played a motivating part in the City’s

decisions even if other factors may also have motivated its actions against Plaintiff.

132.

The City acted with the intent to discriminate.

133.

The City acted upon a continuing course of conduct.

134.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

reputational harm, diminishment of career opportunities, and other harm, both tangible

and intangible.

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WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that the City’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT IV TITLE VII RETALIATION
42 U.S.C. § 2000e-3 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

135.

Plaintiff repeats every allegation made in the above paragraphs of this complaint.

136.

Title VII protects employees from retaliation for attempting to exercise their

rights under the Act:

42 U.S.C. § 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [she] has opposed any practice made an unlawful employment practice by this subchapter, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

137.

The Supreme Court in Burlington v. N. & S.F. Ry. V. White, 548 U.S. 53, 68

(2006) held that a cause of action for retaliation under Title VII lies whenever the

employer responds to protected activity in such a way that “might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

138.

Informal complaints and protests can constitute protected activity under the

“opposition” clause of 42 U.S.C. § 2000e-3(a). Moore v. City of Philadelphia, 461 F.3d 29

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331, 343 (3d Cir. 2006) (“Opposition to discrimination can take the form of informal

protests of discriminatory employment practices, including making complaints to

management.”).

139.

Retaliation need not be job-related to be actionable under Title VII—an employer

can effectively retaliate against an employee by taking actions not directly related to her

employment or by causing her harm outside the workplace. White, 548 U.S. at 61-62

(rejecting authority from the Third Circuit and others requiring that the plaintiff suffer an

adverse employment action in order to recover for retaliation).

140.

“[A] plaintiff need not prove the merits of the underlying discrimination

complaint, but only that ‘[she] was acting under a good faith, reasonable belief that a

violation existed.’” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993); Sumner v. United

States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990), overruled on other grounds by

Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir.1995); see also Moore, 461 F.3d at 341

(finding that a transfer of a police officer from a district could constitute actionable

retaliation because it “is the kind of action that might dissuade a police officer from

making or supporting a charge of unlawful discrimination within his squad.”).

141.

Here, the City discriminated against Plaintiff because Plaintiff asserted her rights

to a discrimination-free workplace under Title VII.

142.

Plaintiff was acting under a reasonable, good faith belief that her right to be free

from discrimination on the basis of sex was violated.

143.

Because Plaintiff asserted her rights under the Title VII, Defendant retaliated

against her by denying her extensions of her restricted duty status, sending her home

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from work without pay, placing her on leave without pay, forcing her to use her accrued

personal time to account for these hours when she was sent home without pay,

denouncing her reputation, stigmatizing her, and placing Plaintiff on “no duty” status in

late February 2020.

144.

The City also discriminated against Plaintiff by taking materially adverse actions

against third parties who engaged in protected activity on Plaintiff’s behalf.

145.

In determining whether a plaintiff has produced evidence of causation, courts in

the Third Circuit focus on two indicia: timing and evidence of ongoing antagonism.

Plaintiff will rely on a broad array of evidence to demonstrate a causal link between her

protected activity and the City’s actions taken against her, such as the unusually

suggestive proximity in time between events, as well as Defendant’s antagonism and

change in demeanor toward Plaintiff after Defendant became aware of Plaintiff’s

protected activity.

146.

The City’s actions were “materially adverse” because they were serious enough to

discourage a reasonable worker from engaging in protected activity.

147.

The City acted upon a continuing course of conduct.

148.

As a result of the City’s violations of Title VII, Plaintiff has suffered damages,

including, but not limited to: past and future lost wages, pain and suffering,

inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,

reputational harm, diminishment of career opportunities, and other harm, both tangible

and intangible.

WHEREFORE, Plaintiff Janelle Newsome demands judgment against Defendant City of Philadelphia and prays for the following relief: (1) an award of compensatory damages in an

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amount consistent with Title VII; (2) an award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an award of pre- and post-judgment interest and court costs as further allowed by law; (4) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.

COUNT V PHRA DISCRIMINATION
43 P.S. §§ 951-963 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

149.

Plaintiff incorporates by reference each and every allegation made in the above

paragraphs of this complaint.

150.

The PHRA § 955 provides that it shall be an unlawful discriminatory practice:

“(a) For any employer because of the race, color, religious creed, ancestry, age, sex,

national origin or non-job related handicap or disability or the use of a guide or support

animal because of the blindness, deafness or physical handicap of any individual or

independent contractor, to refuse to hire or employ or contract with, or to bar or to

discharge from employment such individual or independent contractor, or to otherwise

discriminate against such individual or independent contractor with respect to

compensation, hire, tenure, terms, conditions or privileges of employment or contract, if

the individual or independent contractor is the best able and most competent to perform

the services required.”

151.

Defendant engaged in unlawful employment practices in violation of the PHRA

by discriminating against Plaintiff because of her sex.

152.

Defendant acted with intent to discriminate.

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153.

Defendant cannot show any legitimate nondiscriminatory reason for its actions

against Plaintiff and any reasons proffered by Defendant are pretextual and can be readily

disbelieved.

154.

As a result, Plaintiff has suffered damages.

155.

Plaintiff hereby makes a claim against Defendant under all of the applicable

paragraphs of the PHRA § 955.

WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following

relief: (1) actual damages; (2) compensatory damages in an amount consistent with the PHRA;

(3) reasonable attorneys’ fees in accordance with the PHRA; (4) litigation costs in accordance

with the PHRA; (5) pre- and post-judgment interest as further allowed by law; (6) an

adjudication and declaration that Defendant’s conduct as set forth herein is in violation of the

PHRA; (7) punitive damages in accordance with the PHRA; (8) front pay in accordance with the

PHRA; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VI PHRA RETALIATION
43 P.S. §§ 951-963 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

156.

Plaintiff incorporates by reference each and every allegation made in the above

paragraphs of this complaint.

157.

PHRA § 955(d) provides that it shall be an unlawful discriminatory practice: " For

any person, employer, employment agency or labor organization to discriminate in any

manner against any individual because such individual has opposed any practice

forbidden by this act, or because such individual has made a charge, testified or assisted,

in any manner, in any investigation, proceeding or hearing under this act."

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158.

Defendant engaged in an unlawful discriminatory practice by retaliating and

otherwise discriminating against Plaintiff because of Plaintiff’s opposition to the

unlawful employment practices of their employer.

159.

The City discriminated against Plaintiff because Plaintiff asserted her rights to a

discrimination-free workplace under the PHRA.

160.

Plaintiff was acting under a reasonable, good faith belief that her right to be free

from discrimination on the basis of sex was violated.

161.

Because Plaintiff asserted her rights under the PHRA, Defendant retaliated

against her by denying her extensions of her restricted duty status, sending her home

from work without pay, placing her on leave without pay, forcing her to use her accrued

personal time to account for these hours when she was sent home without pay,

denouncing her reputation, stigmatizing her, and placing Plaintiff on “no duty” status in

late February 2020.

162.

The City also discriminated against Plaintiff by taking materially adverse actions

against third parties who engaged in protected activity on Plaintiff’s behalf.

163.

Plaintiff will rely on a broad array of evidence to demonstrate a causal link

between her protected activity and the City’s actions taken against her, such as the

unusually suggestive proximity in time between events, as well as Defendant’s

antagonism and change in demeanor toward Plaintiff after Defendant became aware of

Plaintiff’s protected activity.

164.

As a result, Plaintiff has suffered damages.

WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following

relief: (1) actual damages; (2) compensatory damages in an amount consistent with the PHRA;

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(3) reasonable attorneys’ fees in accordance with the PHRA; (4) litigation costs in accordance with the PHRA; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of the PHRA; (7) punitive damages in accordance with the PHRA; (8) front pay in accordance with the PHRA; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VII PHRA AIDING AND ABETTING
43 P.S. §§ 951-963 Plaintiff Janelle Newsome v. Defendant City of Philadelphia

165.

Plaintiff incorporates by reference each and every allegation made in the above

paragraphs of this complaint.

166.

PHRA § 955(e) provides that it shall be an unlawful discriminatory practice: “for

any person, employer, employment agency, labor organization or employee, to aid, abet,

incite, compel or coerce the doing of any act declared by this section to be an unlawful

discriminatory practice, or to obstruct or prevent any person from complying with the

provisions of this act or any order issued thereunder, or to attempt, directly or indirectly,

to commit any act declared by this section to be an unlawful discriminatory practice."

167.

Defendant engaged in an unlawful discriminatory practice in violation of PHRA

§955(e) by committing, aiding, abetting, inciting, compelling and coercing the

discriminatory conduct.

168.

As a result, Plaintiff has suffered damages.

WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following

relief: (1) actual damages; (2) compensatory damages in an amount consistent with the PHRA;

(3) reasonable attorneys’ fees in accordance with the PHRA; (4) litigation costs in accordance

with the PHRA; (5) pre- and post-judgment interest as further allowed by law; (6) an

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adjudication and declaration that Defendant’s conduct as set forth herein is in violation of the PHRA; (7) punitive damages in accordance with the PHRA; (8) front pay in accordance with the PHRA; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT VIII PFPO DISCRIMINATION Philadelphia Code §§ 9-1101 et seq Plaintiff Janelle Newsome v. Defendant City of Philadelphia

169.

Plaintiff incorporates by reference each and every allegation made in the above

paragraphs of this complaint.

170.

The Philadelphia Fair Practices Ordinance § 9-1103(1) provides that “It shall be

an unlawful employment practice to deny or interfere with the employment opportunities

of an individual based upon his or her race, ethnicity, color, sex (including pregnancy,

childbirth, or a related medical condition), sexual orientation, gender identity, religion,

national origin, ancestry, age, disability, marital status, familial status, genetic

information, or domestic or sexual violence victim status, including, but not limited to,

the following: (a) For any employer to refuse to hire, discharge, or otherwise discriminate

against any individual, with respect to tenure, promotions, terms, conditions or privileges

of employment or with respect to any matter directly or indirectly related to

employment."

171.

The City engaged in an unlawful discriminatory practice in violation of

Philadelphia Fair Practices Ordinance § 9-1103(1) by creating and maintaining

discriminatory working conditions, and otherwise discriminating against Plaintiff because

of Plaintiff’s sex.

172.

The City acted with intent to discriminate.

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173.

The City cannot show any legitimate nondiscriminatory reason for its actions

against Plaintiff and any reasons proffered by the City are pretextual and can be readily

disbelieved.

174.

As a result, Plaintiff has suffered damages.

175.

Plaintiff hereby makes a claim against the City under all of the applicable

paragraphs of Philadelphia Fair Practices Ordinance Chapter 9-1100.

WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with the PFPO; (3) reasonable attorneys’ fees in accordance with the PFPO; (4) litigation costs in accordance with the PFPO; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of the PFPO; (7) punitive damages in accordance with the PFPO; (8) front pay in accordance with the PFPO; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT IX PFPO RETALIATION Philadelphia Code §§ 9-1101 et seq. Plaintiff Janelle Newsome v. Defendant City of Philadelphia

176.

Plaintiff incorporates by reference each and every allegation made in the above

paragraphs of this complaint.

177.

The Philadelphia Fair Practices Ordinance § 9-1103(1)(g) provides that it shall be

unlawful discriminatory practice: "For any person to harass, threaten, harm, damage, or

otherwise penalize, retaliate or discriminate in any manner against any person because he,

she or it has complied with the provisions of this Chapter, exercised his, her or its rights

under this Chapter, enjoyed the benefits of this Chapter, or made a charge, testified or

assisted in any manner in any investigation, proceeding or hearing hereunder.”

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178.

Defendant engaged in an unlawful discriminatory practice in violation of

Philadelphia Fair Practices Ordinance § 9-1103(1)(g) by discriminating against Plaintiff

because of Plaintiff’s opposition to the unlawful employment practices of their employer.

179.

The City discriminated against Plaintiff because Plaintiff asserted her rights to a

discrimination-free workplace under the PFPO.

180.

Plaintiff was acting under a reasonable, good faith belief that her right to be free

from discrimination on the basis of sex was violated.

181.

Because Plaintiff asserted her rights under the PFPO, Defendant retaliated against

her by denying her extensions of her restricted duty status, sending her home from work

without pay, placing her on leave without pay, forcing her to use her accrued personal

time to account for these hours when she was sent home without pay, denouncing her

reputation, stigmatizing her, and placing Plaintiff on “no duty” status in late February

2020.

182.

The City also discriminated against Plaintiff by taking materially adverse actions

against third parties who engaged in protected activity on Plaintiff’s behalf.

183.

Plaintiff will rely on a broad array of evidence to demonstrate a causal link

between her protected activity and the City’s actions taken against her, such as the

unusually suggestive proximity in time between events, as well as Defendant’s

antagonism and change in demeanor toward Plaintiff after Defendant became aware of

Plaintiff’s protected activity.

184.

As a result, Plaintiff has suffered damages.

WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with the PFPO;

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(3) reasonable attorneys’ fees in accordance with the PFPO; (4) litigation costs in accordance with the PFPO; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication and declaration that Defendant’s conduct as set forth herein is in violation of the PFPO; (7) punitive damages in accordance with the PFPO; (8) front pay in accordance with the PFPO; and (9) all additional general and equitable relief to which Plaintiff is entitled.

COUNT X PFPO AIDING AND ABETTING Philadelphia Code §§ 9-1101 et seq. Plaintiff Janelle Newsome v. Defendant City of Philadelphia

122.

Plaintiff incorporates by reference each and every allegation made in the above

paragraphs of this complaint.

123.

The Philadelphia Fair Practices Ordinance § 9-1103(1)(h) provides that it shall be

unlawful discriminatory practice: "For any person to aid, abet, incite, induce, compel or

coerce the doing of any unlawful employment practice or to obstruct or prevent any

person from complying with the provisions of this Section or any order issued hereunder

or to attempt directly or indirectly to commit any act declared by this Section to be an

unlawful employment practice."

124.

Defendant engaged in an unlawful discriminatory practice in violation of

Philadelphia Fair Practices Ordinance § 9-1103(1)(h) by aiding, abetting, inciting,

compelling and coercing the above discriminatory, unlawful and retaliatory conduct.

125.

As a result, Plaintiff has suffered damages.

WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following relief: (1) actual damages; (2) compensatory damages in an amount consistent with the PFPO; (3) reasonable attorneys’ fees in accordance with the PFPO; (4) litigation costs in accordance with the PFPO; (5) pre- and post-judgment interest as further allowed by law; (6) an adjudication
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and declaration that Defendant’s conduct as set forth herein is in violation of the PFPO; (7) punitive damages in accordance with the PFPO; (8) front pay in accordance with the PFPO; and (9) all additional general and equitable relief to which Plaintiff is entitled.

JURY DEMAND Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands

a trial by jury on all questions of fact raised by this complaint.

Respectfully submitted,

DEREK SMITH LAW GROUP, PLLC

Dated: December 12, 2020

/s/ Ian M. Bryson, Esquire IAN M. BRYSON, ESQUIRE 1835 Market Street, Suite 2950 Philadelphia, PA 19103 215-391-4790 ian@dereksmithlaw.com Attorneys for Plaintiff and the Proposed Class

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