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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELISSA McFADDEN, :

: Civil Action No. 2:18-cv-544

Plaintiff, :

:

v. : JUDGE: SARGUS

: MAGISTRATE JUDGE: JOLSON

CITY OF COLUMBUS, :

:

Defendant. :

PLAINTIFF MELISSA McFADDEN’S MOTION

FOR EQUITABLE RELIEF

Plaintiff Lt. Melissa McFadden (“Lt. McFadden”) respectfully moves, pursuant to 

Fed.R.Civ.P. 65, for an injunction and other equitable relief requiring Defendant to take 

appropriate remedial actions that will deter future illegal conduct and restraining it from taking

retaliatory adverse action against Lt. McFadden.

Lt. McFadden requests that this Court order Defendant to: (1) expunge all records of her 

illegal temporary reassignment to the property room from March 13, 2017, until her return to 

work in Zone 2 on December 19, 2018; (2) expunge from her personnel file all records related to 

this lawsuit; (3) refrain from taking any adverse action against Lt. McFadden based on her filing 

and prevailing in this lawsuit; (4) avoid using this lawsuit as a consideration in any future 

employment decisions regarding Lt. McFadden or any Defendant employee who acted as a 

witness on behalf of Lt. McFadden; (5) isolate, if unable to expunge due to public records laws 

(O.R.C. § 149 et seq) all records related to the illegal reassignment and/or lawsuit from any 

other files bearing her name and employment information and restrict access to those with a 

specific need to know;(6) place a notice of the jury verdict and all equitable relief in a location 

visible to its employees, stating that Lt. McFadden secured judgment against Defendant for 

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both illegal discrimination and retaliation for her temporary reassignment to the property room 

during the pendency of the IAB investigation; (7) prevent Deputy Chief Kenneth Kuebler and 

Deputy Chief Jennifer Knight from participating in any decisions regarding Lt. McFadden’s 

employment status or assignments; (8) create a racially neutral policy regarding the temporary 

reassignment of Defendant employees during the pendency of an investigation prohibiting the 

use of punitive reassignments while their conduct is being investigated.

MEMORANDUM IN SUPPORT OF PLAINTIFF MELISSA

McFADDEN’S MOTION FOR EQUITABLE RELIEF

I. Overview

Lt. McFadden seeks this relief based on her success in a jury trial (Doc #s 104 and 107) 

in proving that Defendant City of Columbus engaged in illegal discriminatory and retaliatory 

conduct, by temporarily reassigning her to the property room to disassemble bullet proof vests 

during the pendency of the IAB investigation of EEO allegations against her, in violation of both 

federal and state law. The injunction she seeks provides specific relief tailored to what she 

proved at trial and her ongoing employment with Defendant. She assumes that Defendant will 

realize it remains bound by the general prohibitions of discrimination and retaliation imposed by 

the Constitution, Title VII, and the Ohio Laws of Discrimination, even though it flouted those 

laws by discriminating and retaliating against her.

II. Argument

A. Courts Are Empowered to Provide Appropriate Equitable Relief.

Lt. McFadden is currently employed by Defendant, subject to future investigations and 

reassignments, and will continue to seek promotion as opportunities arise. The record at trial is 

clear: Lt. McFadden is perceived by many Columbus Division of Police (CDP) employees as a 

troublemaker who cavalierly alleges racial discrimination and retaliation. She urges the Court to 

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keep in mind that, even though she was widely known to be litigious, CDP still discriminated 

and retaliated against her. That level of resentment and insistence on putting her in her place 

necessitate appropriate equitable relief. 

Her success at trial will exacerbate, rather than eliminate, the widespread perception. The 

$2 monetary award may be misunderstood as exoneration, and risks CDP personnel taking action 

against Lt. McFadden based on the mistaken belief that CDP did not harm her. 

“[O]ne of the central purposes of Title VII is ‘to make persons whole for injuries suffered 

on account of unlawful employment discrimination.’” Franks v. Bowman Transp. Co., Inc., 424 

U.S. 747, 763 (1976) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). Title 

VII expressly provides for injunctive relief: “If the court finds that the [defendant] has 

intentionally engaged in ... an unlawful employment practice charged in the complaint, the court 

may enjoin the [defendant] from engaging in such unlawful employment practice, and order such 

affirmative action as may be appropriate, which may include, but is not limited to. . . any 

other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1).

In exercising this discretion, a Court “must strive to grant ‘the most complete relief 

possible.’” Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989) (quoting Franks, 424 U.S. at 

764). “[T]he [district] court has not merely the power but the duty to render a decree 

which will so far as possible eliminate the discriminatory effects of the past as well as bar like 

discrimination in the future.” Louisiana v. United States, 380 U.S. 145, 154 (1965). Accord

United States v. City of New York, 717 F.3d 72, 95 (2nd Cir. 2013) (“Once liability for racial 

discrimination has been established, a district court has the duty to render a decree 

that will eliminate the discretionary effects of past discrimination and prevent like discrimination 

in the future.”).

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After all, “Congress armed the courts with broad equitable powers to effectuate this 

‘make whole’ remedy.” Eshelman v. Agere Sys., Inc., 554 F.3d 426, 440 (3rd Cir.2009). 

“Discretion is vested ... to allow the most complete achievement of the objectives of Title VII 

that is attainable under the facts and circumstances of [each] specific case.” Franks, 424 U.S. at

770–71. 

Thus, this Court has “wide discretion to ‘locate a just result’ regarding the parameters of 

the relief granted in the circumstances of [this] case.” Eshelman, 554 F.3d at 440 

(quoting Albemarle Paper Co., 422 U.S. at 424). “[T]he court must, as nearly as possible, ‘

“recreate the conditions and relationships that would have been had there been no”’ unlawful 

discrimination.” Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977) (quoting 

Franks, 424 U.S. at 769). That “wide discretion” is also granted to remedy constitutional 

violations and, when exercising supplemental jurisdiction, to remedy violations of Ohio law.

The equitable relief Lt. McFadden seeks is well tailored to the testimony the jury heard 

and what the jury must have found. “A district court has broad discretionary powers to craft an 

injunction to the specific violations found to ensure that the employer complies with the 

law.” EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 842 (6th Cir.1994). “In fashioning relief 

against a party who has transgressed the governing legal standards, a court of equity is free to 

proscribe activities that, standing alone, would have been unassailable.” Ky. Fried Chicken Corp.

v. Diversified Packaging Corp., 549 F.2d 368, 390 (5th Cir.1977). The focus is on conduct 

“which has been found to have been pursued or is related to the proven unlawful 

conduct.” Wilson Metal Casket, 24 F.3d at 842.

The City will no doubt argue as it did at trial that it can be trusted to operate without

discrimination or retaliation. Howe v. City of Akron, 801 F.3d 718, 754 (6th Cir. 2015) (quoting 

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EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987)), explained that 

“[p]ermanent injunctions may be appropriate remedies even when the defendant has taken 

remedial action because ‘[a]n employer that takes curative actions only after it has been sued 

fails to provide sufficient assurances that it will not repeat the violation.’”

While mootness will be found when a defendant “can demonstrate that there is no 

reasonable expectation that the wrong will be repeated,” Mosley v. Hairston, 920 F.2d 409, 415 

(6th Cir. 1990) (internal quotations omitted), CPD bears a “heavy burden” and must demonstrate 

that “the challenged conduct cannot reasonably be expected” to occur again. United States v.

Dairy Farmers of Am., Inc., 426 F.3d 850, 857 (6th Cir. 2005) (internal citations and quotations 

omitted). Defendant cannot carry that burden at bar. 

B. Expungement, Preventive Measures, and Modified Policies Constitute 

Appropriate Equitable Relief. 

The relief sought by Plaintiff stems from her Complaint filed on June 4, 2018 (Doc. # 2) 

where she sought “equitable relief of reinstatement with expungement of her personnel file and 

IAB file” as well as “such other relief as the Court deems fair and equitable” (see Doc # 2 

PAGEID 25-26) The scope of the injunction sought is closely tied to the case that Lt. McFadden 

proved, as it seeks to effectively eliminate discrimination and retaliation in temporary 

reassignments pending IAB or other investigations. Lt. McFadden believes that, without this 

Order, it is likely Defendant will continue to engage in illegal conduct in temporary 

reassignments pursuant to investigations.

Expungement is a classic exercise of equitable power. A “plaintiff who is the subject of 

illegal evaluations is entitled, at a minimum, to have any discriminatory records purged from his 

personnel files.” Smith v. Sec'y of Navy, 659 F.2d 1113, 1114 (D.C. Cir. 1981). See also 

Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975) (“The federal courts are empowered to 

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order the expungement of Government records where necessary to vindicate rights secured by 

the Constitution or by statute.”). For example, Hayes v. Shalala, 933 F. Supp. 21, 27 (D.D.C. 

1996), “order[ed] that Mr. Hayes' personnel folder and other relevant Department records be 

corrected to reflect the jury's verdict and the equitable relief provided by the Court.”

In Vega v. Chicago Park Dist., 351 F. Supp. 3d 1078, 1087 (N.D. Ill. 2018), aff’d, 954 

F.3d 996 (7th Cir. 2020), expungement of personnel records was ordered to remove the stain on 

the plaintiff’s record: “Because expungement of disciplinary records tainted by discrimination is 

a fair and appropriate remedy in this case, the Court orders defendant to expunge all references 

to the discriminatory investigation into plaintiff's timesheet fraud and resulting discipline[.]”

Lt. McFadden anticipates not only standing for promotion but also persisting in seeking 

justice. Based on her past mistreatment, she also anticipates continued resentment and 

resistance. Expungement was ordered in Doherty v. City of Maryville, No. 3:07-CV-157, 2009 

WL 2823670, at *4 (E.D. Tenn. Aug. 28, 2009), on such grounds: “The Court believes that as 

long as this reprimand remains on file, Doherty faces ongoing irreparable harm as it may impact 

his opportunities for a promotion or otherwise tarnish his reputation.” In turn, the Court found 

that the employee “will face ongoing irreparable harm to his reputation as long as the written 

reprimand remains in his file [and thus] does not have an adequate remedy at law. Accordingly, 

the Court will direct that defendant expunge the written reprimand issued to Doherty on 

September 22, 2006, and the underlying allegations which led to the written reprimand from all 

City of Maryville, Maryville Fire Department, and personnel files.” Id.

Communicating information to Defendant’s employees is essential to protecting Lt. 

McFadden from the perception that she cavalierly alleges discrimination and/or retaliation. 

When a plaintiff “remains an employee of the City and wishes to continue to work for the City 

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for the foreseeable training,” she naturally “has an interest in the dissemination of accurate 

information about the outcome of this litigation.” Hemphill v. City of Wilmington, 813 F. Supp. 

2d 592, 601 (D. Del. 2011) (footnote omitted). 

As in Hemphill, 813 F.Supp. 2d at 601, “direct[ing] the City to publish the verdict in this 

case” will go far “[t]o ensure [Lt. McFadden] suffers no further harassment or retaliation for 

engaging in protected activity[.]” There, the City was ordered to “post a complete and accurate 

description of the outcome of this litigation, including the jury's finding that the 

City retaliated against Hemphill, its award of no compensatory damages, and a description of 

the equitable relief I have awarded.” Id. Accord Hare v. Potter, 549 F. Supp. 2d 688, 698 (E.D. 

Pa. 2007) (“To accomplish complete relief, defendant shall publish notices of the verdict in the 

contested region”).

Relief from a superior who engaged in discrimination or retaliation is a critical portion of 

make-whole relief. While laws and Defendant’s policies against discrimination and retaliation 

demonstrate compliance on paper, what happens in practice differs dramatically. Hemphill, 813 

F.Supp. 2d at 601, recognized this discrepancy: “Although the evidence at trial demonstrated the 

City has a harassment policy—on which it trains employees and managers, including those who 

played a central role in this case—the jury's finding that the City retaliated against Hemphill 

because she complained of a hostile work environment evidences that, at least in this instance, 

the City's policies and training programs apparently failed.” The evidence at Lt McFadden’s trial 

shows the same departure from the law and Defendant’s equal employment opportunity policies.

This type of relief is commonplace for sexual harassment by supervisors that inflicted a 

hostile work environment about which management was aware. Bundy v. Jackson, 641 F.2d 

934, 943–46 (D.C. Cir. 1981), remanded for such an injunction even though the plaintiff had not 

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complained of harassment for six years due to the potential for resumption of harassment 

“because [the plaintiff's] agency ha[d] taken no affirmative steps to prevent recurrence of the 

harassment, and because all the harassing employees still work[ed] for the agency.” Id. at 946 

n.13. Fortunately for Lt. McFadden most of the discriminating and retaliating employees are no 

longer at CDP; however, the key players remain and should be recused from making future 

employment decisions about her.

Indeed, an even broader injunction against discrimination or retaliation would be 

justified. Vega, 351 F. Supp. 3d at 1087, recognized that the plaintiff’s reinstatement and 

“testimony describing feelings of resentment against plaintiff for bringing this lawsuit” were 

“sufficient to justify such an injunction." The equitable relief was “[t]he Court enjoins defendant 

from discriminating against plaintiff based on her national origin by disciplining or terminating 

her in a manner disproportionate to the manner in which employees of other national origins who 

have engaged in similar conduct are treated, or for conduct tolerated in employees of other 

national origins, or retaliating against her for bringing this lawsuit.” Id.

The Sixth Circuit held in Howe, 801 F.3d at 755, that “[a]n injunction is not overly broad 

because it requires that a defendant comply with federal law.” Citing and quoting Goodyear

Aerospace, 813 F.2d at 1544-45, which “disagree[d]” with the district court’s view “that an 

injunction against retaliation was superfluous because Title VII already prohibits that conduct,” 

Howe, 801 F.3d at 755, explained that “[s]uch provisions are commonplace and reflect the belief 

that an employer's ‘eleventh hour change of heart’ following being sued for violating federal law 

is insufficient assurance that the employer will not violate federal law again. Howe, 801 F.3d at 

755, affirmed a broad injunction and cited approvingly precedent that included “barring 

retaliation for complaining against discrimination.” Lt. McFadden traces the discrimination and 

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retaliation found by the jury to CDP’s informal and subjective reassignment policy or custom. 

At trial, Lt. McFadden adduced evidence that Defendant does not have a policy regarding 

temporary reassignments pending investigations into possible misconduct. Division Policy 8.04 

(Attached as Exhibit 1 accessed through Defendant’s website on June 17, 2022) is silent as to 

temporary reassignments pending investigations. Moreover, the Collective Bargaining 

Agreement between Defendant and the Fraternal Order of Police is silent regarding member 

rights for temporary reassignments pending investigations (Attached as Exhibit 2, accessed 

through Defendant’s website on June 17, 2022)

In addition to Defendant’s policy directive and the CBA being silent to temporary 

reassignments, depositions filed with the Court and trial testimony shows Defendant had no such

policy, but rather leaves the reassignment to the whims of an officer’s chain of command.

Former Deputy Chief of Police Gary Dunlap testified during the trial that “internal affairs does 

not dictate reassignments; that’s a chain of command decision for a particular officer” (See trial 

transcript day 1 129:2-5, 129:10-12) 

Lt. Bela Bernhardt, commanding IAB at the time of his deposition, similarly testified that 

reassignments are made by the chain of command for the officer involved (“[T]he relief of duty 

occurs by the chain of command not by internal affairs.” “As with any relief of duty it is the 

chain of command that makes the determination at the time of the relief where they are going 

because when an officer, lieutenant, sergeant, whoever is relieved of duty on that form our 

instructions are where there are to report and that is done by the chain of command” (Bernhardt 

Dep. at 78:14-79:17))

Amy Van Pelt, Defendant’s Human Resources Manager at the time of her deposition 

testified that when a Defendant employee is temporarily reassigned during an IAB investigation 

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that the responsibility for that reassignment would be “the office of the Chief [of Police]” (Van 

Pelt Dep. at 51:18-24) Ms. Van Pelt continued that when making a temporary reassignment 

decision “the Chief’s office would collaborate with IA and/or potentially HR, City Attorney, 

multiple entities to make that determination but the ultimate decision would come from the office 

of the Chief based on recommendations.” (Id. at 52:5-19) 

Defendant’s informal and subjective reassignment custom left unbridled the discretion of 

superior officers, and the general prohibitions of discrimination and retaliation did not prevent 

them from discriminating and retaliating against Lt. McFadden. A policy to the following effect 

would remedy that approach: “Temporary reassignments during investigations will be made 

only when necessary, subject, however to such reassignments being consistent with past 

reassignments for similarly situated officers, commensurate with the rank and duties of the 

officer being investigated, and preventive, rather than punitive, in nature.”

III. Conclusion

Defendant now stands before the Court in a very different posture than before the jury 

verdict. Having been adjudicated liable for discrimination and retaliation in violation of the 

Constitution, Title VII, and Ohio law, Defendant is now subject to the presumption that potent 

equitable relief must be ordered. 

Lt. McFadden has not asked for a “sin no more” injunction ordering Defendant to abide 

by the law in general, but she is seeking relief that will make her whole and protect her in the 

future while restraining Defendant from repeating the discrimination and retaliation. Her motion 

should, therefore, be granted.

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 Respectfully submitted,

OF COUNSEL:

Louis A. Jacobs (002101)

(LAJOhio@aol.com)

177 19th St., Apt. 9C

Oakland, CA 94612

(614) 203-1255

Fax (510) 250-9007

By: /s/ Samuel M. Schlein

Samuel M. Schlein (0092194)

(sschlein@marshallforman.com)

John S. Marshall (0015160)

(jmarshall@marshallforman.com)

Edward R. Forman (0076651)

(eforman@marshallforman.com)

Helen M. Robinson (0097070)

(hrobinson@marshallforman.com)

Madeline J. Rettig (0098816)

(mrettig@marshallforman.com)

MARSHALL FORMAN AND SCHLEIN 

LLC

250 Civic Center Dr., Suite 480

Columbus, Ohio 43215-5296

(614) 463-9790

Fax (614) 463-9780

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was filed with the Court on this 21 day of 

June, 2022 by hand delivery. Parties may access this filing through the court’s filing system.

By: /s/ Samuel M. Schlein

Samuel M. Schlein (0092194)

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