thomas complaint

7/24/2019 Thomas Complaint

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

AUDENIA NICOLE THOMAS, CASE NO.: 2:13-cv-75-FtM-99SPC

Plaintiff,

vs.

THE CITY OF FORT MYERS POLICEDEPARTMENT, AN AGENCY OF THECITY OF FORT MYERS,

Defendant.

______________________________/

FIRST AMENDED COMPLAINT FOR DISCRIMINATION

COMES NOW, Plaintiff, Audenia Nicole Thomas, (hereinafter Thomas) and sues

Defendant, The City of Fort Myers Police Department, an agency of the City of Fort Myers,

(hereinafter Police Department or FMPD) and alleges as follows:

Jurisdictional and Venue

1. This is an action brought to remedy a continuing practice of discrimination on

the basis of race and gender, as well as retaliatory discrimination, and the terms,

conditions, and privileges of employment in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e, et. seq. as amended by the Civil Rights Act of 1991 and Article

XIV 1 of the Constitution of the United States (equal protection and due process clause).

2. Jurisdiction is founded on 42 U.S.C. 2000e-5(f)(3) and 28 U.S.C. 1331

and 1343(a)(4).

Case 2:13-cv-00075-SPC-UAM Document 17 Filed 06/28/13 Page 1 of 23 PageID 124


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For purposes o f completeness, Plaintiff has attached as Exhibit Aan April 30 , 2012 letterth1

from the EEOC District Director, Miami District Office, referring the matter to the Department of Justice, and

stating: If DOJ does not bring a lawsuit they will notify you and issue a N otice of Right to S ue, which w ill entitle

you to sue the Responden t under the Statute cited.

2

3. Venue is proper in this District pursuant to U.S.C. 1391, as Defendant

resides within the District, and all of the events giving rise to this claim occurred within this

District (i.e. within Lee County, Florida).

4. Plaintiff, Thomas, also brings this action to remedy Defendants continuing

retaliation against her for opposing and challenging the pervasive discriminatory

employment practices by Defendant against African American female officers, and said

retaliation also being in violation of Title VII, supra.

Parties

5. Plaintiff, Thomas, is an African American female, a state-certified, law

enforcement officer; and is both a citizen of the United States, and a resident of Lee

County, Florida. At all times material, Plaintiff, Thomas, is sui juris.

6. Defendant, City of Fort Myers Police Department, is a political subdivision of

the State of Florida; and is an employer subject to Title VII having in its employ, fifteen (15)

or more employees for twenty (20) or more weeks during the years 2006 through and

inclusive of 2013.

Conditions Precedent

7. Plaintiff, Thomas, has exhausted the required Administrative Procedures and

remedies of the Equal Employment Opportunity Commission (EEOC ) and has received1

a Right to Sue Letter from the U.S. Department of Justice, Civil Rights Division, which is

attached hereto as Exhibit B.



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8. This action is filed within the Ninety (90) Day Period from the date on which

Plaintiff, Thomas, received the Right to Sue Letter, (i.e. November 13 , 2012) as requiredth

by law and within four (4) years of the last act that forms the basis of Defendants

discriminatory practices on the basis of race, gender and retaliation in violation of Title VII.

Factual Allegations Common to All Counts

9. On or about December 18 , 1997, Plaintiff, Thomas, was hired by the Cityth

of Fort Myers, to serve as a Community Service Aide for the Fort Myers Police

Department. Plaintiff remained in this position for approximately eight (8) months.

10. On or about October 1998, Plaintiff entered the Police Academy in order to

become a Certified Law Enforcement Officer. Plaintiff, Thomas, successfully completed

the Police Academy, and in June, 1999, began serving as a Patrol Officer for the Fort

Myers Police Department (hereinafter FMPD).

11. From 1999, up through April 2004, Plaintiff remained a Patrol Officer with the

FMPD. However, on or about May 7, 2004 Plaintiff, Thomas, was promoted to the

Detective Division, and was assigned to the Property-Crimes Unit (i.e. burglary, grand theft,

forgeries - felony level investigations).

12. Plaintiff, Thomas, remained in the Detective Division - Property Crimes Unit

through May 2007.

13. Shortly after Plaintiff was promoted into the Detective Division, the FMPD

began to apply their race and gender based discriminatory policies against Detective

Thomas, although initially she did not grasp the magnitude of it.

14. For example as part of their discriminatory policy the following events

occurred, to wit:



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(a) Plaintiff was told part of the standard programupon becoming a detective involved participationin the Detective Field Training Program. Duringsaid training, Plaintiff was assigned to work withother senior Detectives, and underwent weekly

performance evaluations. Plaintiffs earlyperformance evaluations were positive.

(b) Plaintiff was then assigned to SupervisoryDetective William Musante (Caucasian male) tocontinue her Field Training. Shortly thereafter,Musante began submitting evaluations claimingPlaintiff poorly performed her tasks andassignments.

(c) The evaluations prepared by Detective Musante

were fabricated and embellished to create anillusion that Plaintiff was not competent toperform the requisite duties of her job.

(d) During the night shift, the same supervisingDetective Musante, would harass Plaintiff,without provocation, and for no justifiablereason.

(e) Detective Musante repeatedly threatenedPlaintiff, that he was going to perform a deskinspection , or he would approach Plaintiffsdesk, grab her purse and proceed to open it.Plaintiff was initially stunned when Musante firstgrabbed Plaintiffs purse, and opened it. Suchan invasion of privacy, by her acting Supervisorwas demeaning; and there existed no writtenauthority or City based protocols to authorizesuch an action.

(f) The harassment continued. Detective Musante,would repeatedly approach Plaintiffs desk andexclaim, for all other personnel to hear, are youready to quit yet; and he would then walk away,laughing out loud.

(g) Despite his racist and gross conduct, theDepartment soon promoted Detective Musanteto Sergeant, and briefly transferred him to the



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Patrol Division.

(h) Several months later, however, toward the endof 2007, Sergeant Musante was transferred backto the Detective Division, and, lo and behold,

was specifically chosen by the Department to bePlaintiffs immediate Supervisor.

15. Plaintiff soon learned that the Field Training Program she had been required

to participate in, had never existed before she became a Detective; and in fact, upon

her completion of the program, it ceased to exist. No Caucasian Officer in the history of

the FMPD, ever had to undertake such a program, upon being promoted to Detective; and

nowhere in the Policy and Procedure Manuals throughout the Fort Myers Police

Department is such a training program even discussed.

16. The discriminatory practices of the Department also included the failure to

promote qualified African American Officers as was undertaken against Plaintiff, Nicole

Thomas, to wit:

(a) Sometime in the late 2006, the FMPD posted

(via e-mail) an opening over in the ViolentCrimes Unit of the Detective Division.

(b) Plaintiff, Thomas, was and is a well educatedfemale, having received a Masters Degree inHuman Resource Development in 2003, andhaving previously attained her Bachelors Degreein Business Management, in the year 2000.

(c) Plaintiff, Thomas, upon learning of the opening

in the Violent Crimes Unit (VCU) quicklyexpressed her interest in the position.

(d) At all times material Defendant had writtenprocedures and protocols in place which wererequired to be followed by both the Department



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and any interested party seeking the VCUopening/position.

(e) Plaintiff, Thomas, complied with all of theDepartments written procedures in order to seek

the VCU position, and formally submitted allnecessary paperwork in compliance withDepartment Rules.

(f) As part of their continuing discriminatory policybased on race and gender, Plaintiff, Thomas,learned in mid 2007, that the Department simplypassed her over and neglected to follow any ofits own internal procedures (General Order 18.1for Specialized Assignment). Instead, the uppermanagement appointed a female and male to

the VCU opening. Both Officers who werepromoted, were Caucasian, and the femaleOfficer promoted (i.e. Michelle Rand), nevercompleted any forms or paperwork to requestthe position; in contravention of Departmentpolicies.

(g) At all times material Plaintiff, Thomas, had beenemployed longer than the two (2) Caucasianofficers, was much more educated than saidofficers, and had been promoted much earlier tothe Detective Division than the other officers.Detective Thomas had also carried and closedone of the largest case-loads in the DetectiveDivision.

17. Unfortunately, the FMPD has a well documented, several decades-long,

history of failing to promote African Americans and other minorities above less educated

and less-trained Caucasian Officers; as well as a history of treating minority Officers like

second-class citizens.

18. Most of the Detective Division Supervisors knew Plaintiff, an African

American female, had expressed interest in the opening in the Violent Crime Division. In

order to diminish or quell Plaintiffs chances to be promoted, based on Defendants



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continuous discriminatory policy a concerted effort was undertaken to paint her as

incompetent.

19. For example, in mid December, 2006, while Plaintiffs application was

pending, Sergeant Musante issued a written counseling, (i.e. a derogatory note

concerning Plaintiffs professional performance) a blatant attempt to help deride her

chances for the promotion/transfer into VCU.

20. Plaintiff, quickly discerned that statements within the counseling were

exaggerated. Plaintiff refused to sign the written counseling and submitted a rebuttal.

Plaintiff immediately went up the chain of command to a Captain, within the Department,

to complain about the false counseling report fabricated by Sergeant Musante. Plaintiff

was then advised by the Captain, that if he had to initiate another investigation due to

Plaintiffs complaint, Plaintiff would end up with two (2) written reprimands. So instead of

attempting to assist Plaintiff, or giving any thought to investigating her concerns of bias,

the Captain (a Caucasian male) threatened Plaintiff with further reprisal for her having

stepped forward to complain about being treated unfairly.

21. On January 30 , 2007, Sergeant Musante called Plaintiff on her Departmentth

issued cellular phone and instructed Plaintiff to immediately report to the Department for

an emergency conference. Sergeant Musante also indicated that another Officer would

be sitting in on the conference.

22. Since Plaintiff was off-duty at the time of the call, Plaintiff assumed some

emergency had arisen and immediately left her home in Lehigh Acres and drove into

downtown Fort Myers.

23. Upon arriving at the Police Department, Plaintiff was asked about her prior



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actions, weeks earlier, in mid-January, when some complaint came into the Property

Division. Apparently, Plaintiff was on dinner break when a complaint had been called in,

and Detective Joshua Steinman was available and capable of responding to the complaint

without incident.

24. After Plaintiff advised that Detective Steinman had been available to respond,

Sergeant Musante and the other Police Officer abruptly replied: This meeting is over.

When Plaintiff made inquiry why this brief conference could not have taken place a day or

two later, when she would be on-duty, both Musante and the other Police Officer `

simply replied yes, and began laughing hysterically.

25. Even though the minimum overtime hoursfor a call in (i.e. when an off-

duty Officer is summoned to Headquarters) is two (2) hours; Sergeant Musante advised

Plaintiff that when they called her to come in, she would only be entitled to forty-five (45)

minutes of overtime.

26. On other occasions, Sergeant Musante called Plaintiff to come in to the

Department for mundane matters, when he knew she was not on duty. He called her to

come in, sometimes just to get Plaintiff to sign a document, that would take three (3) or

four (4) seconds, which easily could have been completed the following day when she was

on duty.

27. In May, 2007, Plaintiff met with the Chief of the Department to complain

about how the Department failed to adhere to its own procedures in selecting a Detective

for the VCU position. She complained about racial bias within the Department, her work

conditions, and the overall harassment she was receiving. Despite having informed upper



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management of the racial bias and harassment, nothing was done to change the

Departments continuing policy of race and gender discrimination.

28. Since the work-place harassment continued unabated, Plaintiff, in 2007, filed

a formal complaint with the City of Fort Myers Human Resources Division; and in 2008 filed

a formal complaint with EEOC.

29. Shortly after filing said complaints, supervisory personnel within the

Department prepared and submitted an annual performance evaluation on Plaintiff,

indicating that she poorly performed most of the tasks of her job. Of course, the

Department had not conducted any annual evaluations of Plaintiff during the preceding six

(6) or seven (7) years.

30. The Human Resource Department informed Plaintiff that she should take a

couple of days off due to the degree of the continuous harassment she was experiencing.

Plaintiff agreed to take a few days off and she was reassured that during this time, the

Human Resource Department would look into her complaints.

31. Upon returning to the Department, upper management immediately informed

Plaintiff that she was to curtail her normal duties, and would be sitting desk duty.

32. Plaintiff made several inquiries to the Human Resources Department to try

and find out what progress was being made with their investigation of her complaint, and

no response was forthcoming.

33. Three (3) months went by, as Plaintiff remained on desk duty. Plaintiff was

then invited to come down to Human Resources to view the FMPDs response to her

complaint. Only then, upon reading the Citys response, did Plaintiff learn for the first time

that the Department apparently had put her on Administrative Duty, while she herself was



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apparently under investigation.

34. Plaintiff was never formally notified of being placed on Administrative Duty,

or that she was under investigation, and having done so the Department was in violation

of Plaintiffs Officers Bill of Rights.

35. The Administrative Duty issued to Plaintiff was pre-textual to conceal the

actual discrimination that was occurring, and was in direct retaliation for Plaintiff having

filed a formal complaint of discrimination.

36. One result of Plaintiff having filed complaints against Defendants

discriminatory policies was to eliminate her normal Detective duties and responsibilities,

and instead she was placed at a desk position, subject to laughter and direct ridicule by

her supervisors.

37. At all times material, Plaintiff was issued a City of Fort Myers patrol car.

After filing her complaint of discrimination, there were also multiple occasions when Plaintiff

came out of her house, only to find that her patrol car tires were flat, and had been

punctured by a knife blade.

38. In addition to the aforementioned, Plaintiff was subjected to numerous

trumped-up disciplinary action reports after she sought the position with VCU. Prior to that

time, Plaintiff had been with the Detective Division for several years, and had a clean

record.

39. Plaintiff also learned two (2) of her supervisors (both Caucasians) tried to get

her demoted back to patrol, and one in particular was heard stating that she was a dumb

black bitch.

40. Additionally, as will be demonstrated later, the Defendant, intentionally failed



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to abide by its own polices and procedures in order to prevent Plaintiff from seeking

internal review of her job status through the Collective Bargaining Agreement, the City of

Fort Myers Department of Human Resources, and/or through in-house administrative

procedures.

After Occurring Acts of Continual DiscriminationBy the Fort Myers Police Department

41. In 2009, 2010, and through September 8 , 2011, as a continuing act ofth

harassment, retaliation and discrimination, the Defendant, through its upper management,

assigned various Police Officers, in unmarked cars to conduct clandestine surveillance of

the Plaintiff within her residence, and her neighborhood (located in Lehigh Acres, East Fort

Myers); which is well beyond the Police Departments official geographical boundaries.

42. Plaintiff was not under any identifiable investigation in 2009, 2010 and 2011;

yet the Department was attempting to find some act or action committed by Plaintiff while

off-duty; which it could then use to try and justify her dismissal from the Department; and

this was part of Defendants continuing process of harassment, retaliation and

discrimination, due to Plaintiff having availed herself of protective policies under Title VII.

43. At all times material, Plaintiff was issued a Police radio by the City of Fort

Myers Police Department, which purpose in-part was to insure Officer safety in order to

request back-up, additional Police assistance, and for other official Police related matters,

such as reporting on-going crimes or the location of suspects. Plaintiff in the performance

of her official duties discovered after February, 2009 that the Defendant, unbeknownst to

her, had intentionally interfered and/or tampered with the operation of her radio, as part of

its continuing policy of discrimination, retaliation and harassment, thereby jeopardizing her



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safety and her ability to effectively perform her official duties.

44. The City of Fort Myers Police Department maintains strict policies and

procedures associated with annual reviews and evaluations. Said reviews are to transpire

annually around the anniversary date of when the Officer was originally hired.

45. As part of Defendants continuing discrimination, harassment, and retaliation

against Plaintiff, the Defendant did not conductPlaintiffs annual mandatory evaluations

in 2009, 2010, and 2011; which effectively eliminated (procedurally) any opportunity to

challenge her desk assignment or the limitations placed on her positions, through

administrative channels within the Department, or with the City of Fort Myers Human

Resources Department, and/or through the Collective Bargaining Agreement.

46. Plaintiff also spoke with Police Benevolent Association (PBA) attorneys

regarding her employment status in 2009, 2010 and 2011, but because she had not been

reviewed (i.e. as required annually), or demoted from her rank as a Detective, the PBA

advised there was simply no review or appeal process available to her; again confirming

she was intentionally left in limbo, thereby depriving her of her procedural due process

rights.

47. Another hallmark of Defendants continuing pattern and practice of racial

discrimination, gender discrimination, work place harassment and retaliation in 2009,

2010, up through the present, is readily discerned by restrictions placed on Plaintiffs work

assignments by the Defendant, through the actions of its supervisors.

48. For example, standard policies and procedures require that on murder cases,

all Detectives in Plaintiffs Unit who are on-duty are required to report to the crime scene



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to be assigned individual tasks to effectively pursue the investigation.

49. In furtherance of its continuing police of harassment, retaliation and

discrimination, from 2009 through to the present, the Defendant, through its supervisory

staff, when Plaintiff attempted to perform her official duties, would advise Plaintiff her

assistance was not needed, further ostracizing and embarrassing her within the

Departments rank and file. If she appeared at an investigation to assist, she was

instructed that her assistance was not necessary.

50. On several occasions in 2010, 2011, 2012 and 2013, Plaintiff responded to

at-scene investigations, and upon making official inquiry, she was avoided, and/or

ignored, sometimes for extended periods of time. No other Fort Myers Police Department

Officers would answer her questions or provide any information to her, thereby preventing

her from performing her job. Crime scenes were permitted to remain dormant or stale until

the supervisors called (off-duty) Detectives at home, to come to the scene, thereby

jeopardizing the investigation; and further ostracizing and humiliating Plaintiff in the

presence of the other Officers.

51. During the years 2009 through 2012, when Plaintiff was called to a few

crime scenes, and began to talk to witnesses, she would soon discovery that her back-up

Officers had abandoned her, and had fled the crime scene, potentially placing Plaintiffs

life and safety at risk. On one particular occasion Plaintiff literally observed, upon turning

around, the on-scene Officersrunning to their patrol cars to leave the scene.

52. In 2012, Defendant decided it would conduct an annual evaluation of Plaintiff

and assigned the responsibility to Sergeant Hoover, now also her supervisor, yet he is one

of the same individuals who was previously involved in conducting clandestine surveillance



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of Plaintiff at her residence up through September, 2011.

53. The 2012 evaluation of Plaintiff collectively earned her a rating of 2", which

falls in the lowest satisfactory range; but intentionally allows the Department to avoid

giving any explanations for the ratings. As such Plaintiff cannot challenge any of the

findings. The Department policy and procedure manual also required said findings to be

brought to Plaintiffs attention at least ninety (90) days prior to issuing the final evaluation;

yet this was not done, thereby preventing Plaintiff from exercising her procedural due

process rights. In addition, the evaluation itself by this particular Officer constituted a direct

violation of the internal policies of the Department (i.e. Fort Myers Police Department

General Order 7.11): (1) to foster fair and impartial personnel decisions, and (2) to provide

a fair means for measuring and recognizing the individuals performance.

54. At all times material, after February, 2009, and through the present,

Defendant intentionally attempted to isolate Plaintiff, by assigning cases to Plaintiff that

required limited investigations, very limited need for interaction with the public and her co-

workers; all as part of Defendants ongoing policy of discrimination and harassment, as

well as retaliation for her having engaged in protective activity under Title VII.

55. During the Fall of 2011, Defendant, through its management staff, confronted

Plaintiff directly demanding information concerning her EEOC filing and threatening Plaintiff

that they could do whatever they wanted because they held a supervisory position. One

Caucasian supervisor then gave direct orders to other supervisors indicating if Plaintiff

complained about anything to write her up as being insubordinate.

56. At all times material, and from February, 2009 through the present,

numerous Caucasian Police Officers and supervisors employed by Defendant have



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discriminated against Plaintiff in various forms, all of which has created a pervasive hostile

work environment and is in direct retaliation for Plaintiff having filed a discrimination

complaint with EEOC, under Title VII, to wit:

(a) Derogatory e-mails directed at Plaintiff,continuously calling her incompetent, claimingshe is playing the race card, or playing thegender card;

(b) Threatening Plaintiff that due to her EEOC filingshe will be leaving the courtroom crying;

(c) Displaying derogatory and dismissive hand-gestures;

(d) Several Caucasian Officers were seen makingdisgusting facial expressions toward Plaintiff.

(e) Several Caucasian Officers stare her down everytime she passes them by; while others makecrying noises while she is in their presence.

(f) On many other occasions Officers who arespeaking and are at mid-sentence, will just stoptalking in front of her or as she passes by,

creating a zone of silence whenever she is intheir presence.

57. At all times material, Defendant assigned a specific marked unit Police

vehicle to the Plaintiff and in accordance with Police policy, she was permitted to drive said

vehicle home each day.

58. On or about January 21 , 2012, Plaintiff drove her assigned vehicle to Policest

Headquarters. Plaintiff parked her vehicle, locked it up, and entered the Headquarters

building.

59. Sometime later Plaintiff exited the building, entered her assigned patrol



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vehicle and when she turned the air-conditioning system on, she was immediately sprayed

with O.C. Oleoresin & Pepper Spray. Her eyes and nose began to burn and her face

started stinging.

60. Plaintiff immediately recognized the aerosol defense spray odor, as the exact

product is dispensed by the City of Fort Myers Police Department to its Officers for use

against assailants as a mechanism of non-lethal force.

61. Plaintiff immediately put her car windows down and exited the vehicle. This

incident demonstrates, again, the nature and extent of Defendants continuing policy and

practice of subjecting Plaintiff to discrimination, retaliation and harassment in violation of

Title VII.

62. On July 5 , 2011, the Lee County Office of Equal Opportunity (EEOC) issuedth

its Final Investigative Report, under Title VII of the Civil Rights Act of 1964, as amended

and under Lee County Ordinance #00-18, and concluded that Plaintiff was indeed

discriminated against by the Department. The findings confirmed discrimination occurred

based on Plaintiffs race and gender; as well as retaliatory discrimination. Said Final

Investigative Report is incorporated herein in all respects, and is attached hereto as

Exhibit C.

63. The Lee County Final Investigative Report was forwarded to the EEOC office

in Miami for additional review. The Miami Branch of the EEOC, after reviewing the file

affirmed the findings, and then transferred the file to the U.S. Department of Justice,

in Washington, DC.

64. The Department of Justice issued a letter advising they do not undertake

cases involving a single complainant, and thus the ninety (90) day right to sue letter was



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issued. (See Exhibit B, supra).

COUNT I

(RACE DISCRIMINATION)

Plaintiff, Thomas, realleges and reincorporates by reference, paragraphs

one (1) through sixty-four (64), as if fully set forth herein; and further states:

65. Plaintiff, at all times material, as an African American, is within the class

of persons protected by Title VII of the Civil Rights Act of 1964, as amended by the Equal

Employment Opportunity Act of 1972, and the Civil Rights Act of 1991, 42 U.S.C.A.

2000e to 2000e-17.

66. At all times material, Plaintiff, Thomas, had intentionally been treated by

Defendant, less favorably than her Caucasian peers on the Police force because she

is African American.

67. At all times material, Defendant, permitted and in some cases blatantly

authorized supervisory personnel to discriminate against Plaintiff, an African American

female, with the intent to force Plaintiff to quit her position with the City of Fort Myers Police

Department.

68. Defendant, at all times material, engaged in systematic disparate treatment

of black employees, including toward Plaintiff, Thomas, resulting in Plaintiff suffering a

multitude of adverse employment actions.

69. Defendant, intentionally treated Plaintiff differently than Caucasian Officers

in matters directly affecting the terms and conditions of her work, resulting in an extremely

hostile work environment.



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70. Defendants intentional discrimination of Plaintiff, because she is an African

American, violated Plaintiffs rights under Title VII of the Civil Rights Act of 1964, as

amended by the Civil Rights Act of 1991, and Florida Statutes 760.01, et. seq. and has

caused Plaintiff damages which include, but are not limited to, actual out of pocket

pecuniary losses, future pecuniary losses, emotional pain and suffering, inconvenience,

mental anguish, loss of enjoyment of life and other past pecuniary losses.

WHEREFORE, Plaintiff, Audenia Nicole Thomas, demands judgment be entered

against Defendant for:

(a) Compensatory Damages;

(b) Punitive Damages;

(c) Costs and Attorneys Fees;

(d) Pre-Judgment and Post-Judgment interest as appropriate; and

(e) Any other relief this Court deems just and proper.

COUNT II

(GENDER DISCRIMINATION)

Plaintiff, Thomas, realleges and reincorporates by reference, paragraphs one (1)

through sixty-four (64), as if fully set forth herein; and further states:

71. Plaintiff, at all times material, as an African American female, is within the

class of persons protected byTitle VII of the Civil Rights Act of 1964, as amended by the

Equal Employment Opportunity Act of 1972, and the Civil Rights Act of 1991, 42 U.S.C.A.

2000e to 2000e-17.

72. At all times material, Plaintiff, Thomas, has been intentionally treated by



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Defendant, less favorably than her Caucasian male peers on the Police force because

she is an African American woman.

73. At all times material, Defendant permitted and in some instances blatantly

authorized supervisory personnel to discriminate against Plaintiff, with the intent to force

Plaintiff to resign from her position with the City.

74. Defendant, at all times material, engaged in systematic discrimination of

African American female employees, inclusive of Plaintiff, resulting in Plaintiff suffering a

multitude of adverse employment actions.

75. Defendant, intentionally treated Plaintiff differently than female Caucasian

Officers, and mail Caucasian Officers in matters directly affecting the terms and conditions

of her work, resulting in an extremely hostile and biased work environment.

76. Defendants intentional discrimination of Plaintiff, because she is a female

African American, violated Plaintiffs rights under Title VII of the Civil Rights Act of 1964,

as amended by the Civil Rights Act of 1991, and Florida Statutes 760.01, et. seq.and

has caused Plaintiff damages which include, but are not limited to, actual out of pocket

pecuniary losses, future pecuniary losses, emotional pain and suffering, inconvenience,

mental anguish, loss of enjoyment of life and other past pecuniary losses.








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COUNT III

(RETALIATORY DISCRIMINATION AND HARASSMENT)



77. Title VII, not only prohibits discrimination by an employer against an

employee based on race and gender, but it also prohibits retaliation against an employee

for protesting discrimination.

78. Title VII, provides that it shall be an unlawful employment practice for an

employer to discriminate against any of his employees . . . . because [such employee] has

opposed any practice made an unlawful practice by this sub-chapter. 42 U.S.C. 2000e-

3(a).

79. That at all times material, upon filing complaints of discrimination, and upon

verbally transmitting such complaints to upper management and supervisors within the

FMPD, Plaintiff, Thomas, thereby participated in and/or engaged in a protected activity,

that was known to the Defendant.

80. At all times material, Defendants intentional and willful actions in filing false

evaluations of Plaintiff, creating fictitious disciplinary actions, failing to perform annual

evaluations, stripping Plaintiff of all of her duties and assignments as a Detective, as well

as other detailed deliberate actions by Defendant as hereinabove set forth, supra,

constituted an employment decision or action that was disadvantageous to the Plaintiff



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in her employment with the City.

81. That at all times material, Defendants intentional and willful discrimination

and harassment of Plaintiff, as set forth, supra, were directly caused by, and/or causally

connected to Plaintiffs protected activity of having verbally and formally filed complaints

of discrimination against Defendant.

82. As a result of the aforementioned actions by Defendant, Plaintiff has suffered

damages which include, but are not limited to, actual out of pocket pecuniary losses,

future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss

of enjoyment of life and other past pecuniary losses.








COUNT IV

(DENIAL OF PROCEDURAL DUE PROCESS)



83. Plaintiff, as a public employee, had a clearly established right to procedural

due process associated with annual reviews, evaluations, promotions, advancement and/or



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as to disciplinary actions brought against her by Defendant pursuant to Article XIV 1 of

the Constitution of the United States.

84. Plaintiff, as an employee of the City of Fort Myers, was employed under a

Collective Bargaining Agreement, which bestowed certain rights and privileges to Plaintiff

as agreed to by the City. In addition, at all times material, Plaintiff had a property

entitlement to her position as an active duty Detective.

85. Notwithstanding, said Constitutional Rights and contractual terms, the

Defendant breached Federal law, and the Collective Bargaining Agreement by deny

Plaintiff annual reviews for a three (3) year span, and having assigned her to a dubious

role or function, and isolating her without any means of recourse.

86. Defendant failed to give Plaintiff any pre-determination hearing, and proper

disclosure, as required in violation of Plaintiffs Constitutional Rights as set forth above.

87. Defendants actions in demoting Plaintiff to desk duty, without any recourse,

was in direct violation of its own internal procedures for discipline and administrative

actions and was a direct violation of the Citys Collective Bargaining Agreement.

88. As a result of the aforementioned actions by Defendant, Plaintiff has suffered

damages which include actual out-of-pocket pecuniary losses, future pecuniary losses,

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

other past and future pecuniary losses.







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DEMAND FOR JURY TRIAL

Plaintiff, Thomas, demands trial by jury on all issues so triable as to each and every

Count.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 28 day of June, 2013, I electronically filedth

the foregoing with the Clerk of Court by using the CM/ECF system, which will send a noticeof electronic filing to the following: Grant W. Alley, Esquire at [email protected] , and

Cody B. Vaughan-Birch, Esquire at [email protected], [email protected],and [email protected] submitted:

By: /s/David B. Mishael

David B. Mishael, EsquireFlorida Bar No.: 376442David B. Mishael, P.A.8603 South Dixie HighwaySuite 315Miami, FL 33143Tel.: 305-668-3226Fax: 305-668-9866E-Mail: [email protected]

AND

Steven H. Kassner, EsquireFlorida Bar No.: 372331Steven H. Kassner, P.A.4000 Ponce De Leon Blvd. #470Miami, FL 33146(305) 740-5404 (Phone)(305) 777-0449 (Fax)E-mail: [email protected]

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thomas complaint

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