Editor’s note: A version of this story by Bob Audette was published by the Brattleboro Reformer on Sept. 19.
[B]RATTLEBORO — Attorneys for a local police captain accused of unlawful sexual discrimination and violating the Vermont Fair Law Employment Practices Act are seeking a dismissal of a civil suit filed by a former Brattleboro police officer.
According to documents filed with the U.S. District Court for the District of Vermont, Constance T. Pell, of Carroll, Boe & Pell in Middlebury contends Penny Witherbee’s suit against Brattleboro Police Capt. Mark Carignan should be dismissed because he has qualified immunity and was acting in an official capacity.
“State law claims are barred against individual defendants because Vermont law grants immunity to all appointed or elected municipal officials,” wrote Pell.
Even if Carignan “used poor judgment in dealing with employee actions such as performance reviews,” he was still acting in his official capacity, wrote Pell, and it’s the town that should be held liable for the allegation.
“Suits against officers acting in their official capacities are simply another way of pleading an action against a government entity,” noted Pell, quoting from a decision rendered in 1993.
In July, Witherbee, who was then a sergeant in the Brattleboro Police Department, filed the complaint, alleging she was subjected to unwanted sexual advances by Carignan and Assistant Town Manager Patrick Moreland, and denied promotions due to her gender. Witherbee also alleged “disparate treatment in that she has been denied bonus payments received by similarly situated male colleagues” and has been subjected to discipline for conduct that “similarly situated male colleagues regularly engaged in without incurring discipline.” She also claims she was “subjected to continual and frequent pejorative insults on the basis of her gender,” according to the suit.
Witherbee resigned from the Brattleboro force in August.
Defendants named in the suit, in addition to Carignan and Moreland, include the town of Brattleboro, the Brattleboro Police Department, Town Manager Peter Elwell and Brattleboro Police Chief Michael Fitzgerald.
Last week, Moreland’s attorneys filed a motion to dismiss, contending Witherbee has not met her burden of proving Moreland contributed to a hostile work environment nor that she suffered “an adverse employment decision” as a result of Moreland’s alleged conduct in December 2013 and January 2014.
Witherbee was originally hired as a patrol officer in 2002. In late August, she resigned from the Brattleboro Police Department, writing in her resignation letter: “I cannot continue to work with Brattleboro Police Department because the department has made my working conditions so intolerable that I am compelled to resign. The ongoing harassment on the basis of my gender has destroyed both my career and my health. It is obvious to me that I do not have any career prospects in the misogynistic culture that exists within BPD.”
Witherbee was recently hired by the Winchester (New Hampshire) Police Department.
