COURT HOUSE – A federal judge denied a motion, in part, made by the Cape May County Prosecutor’s Office to dismiss a discrimination suit filed by two female detectives against some of their superiors within the office.
In an opinion issued last month, U.S. District Judge Noel L. Hillman ruled that the detectives’ claims of a sex-based hostile work environment, race-based hostile working environment, and gender-based hostile work environment may proceed.
Other claims made by the women were dismissed as part of the order.
Lakeisha Davis, a Black woman, and Kathryn Gannon, a White woman, both alleged in the lawsuit, filed in federal court last year, that various discriminatory and hostile acts were committed against them by their superiors within the prosecutor’s office, specifically by Paul Skill, chief of county detectives, and Steve Vivarina, a lieutenant and supervisor of Davis and Gannon.
Michelle Douglass, an attorney representing the women, told the Herald she was pleased with Hillman’s opinion, given his track record of viewing plaintiffs in employment cases unfavorably.
“He’s pretty notorious, in terms of dismissing what he can, any time he can, in employment cases, and when he can exercise any discretionary call, it’s usually against the employee, not in their favor,” Douglass said of the judge in an interview with the Herald. “This was a very pleasant surprise because it could have been far worse. I think that speaks volumes for the validity of the case overall.”
Both female detectives filed charges with the Equal Employment Opportunity Commission (EEOC) in fall 2019 regarding the alleged conduct. They were issued right-to-sue letters by the EEOC in December 2021.
Davis’ Allegations
In the complaint filed in February 2022 by the two detectives, Davis said she was referred to over the years by coworkers in the prosecutor’s office as a “token Black female,” and by male supervisors as “f—–g b—h.”
In the complaint, she also claims, in 2019, she learned that Skill, the chief detective, referred to her, using a racial slur, as a “n—-r b—h,” during an argument he had at a local bar with a Wildwood police captain.
On a separate occasion, she alleged Vivarina was overheard saying he “hates women in law enforcement.”
Davis further alleged that after her superiors became aware that she made a complaint with the EEOC about her workplace issues, she went to a June 2020 Black Lives Matter event in Washington.
While at the event, Davis alleged she had a colleague cover her on-call “duty weekend,” something she said was a common and accepted practice, but when she returned, an internal affairs investigation was launched into her conduct.
Her attorney believes the investigation had much more to do with the reason she needed to seek coverage, not with the act of seeking informal coverage itself.
“One situation that I cannot countenance, I cannot tolerate, is racism. Any authority, any supervisor, that, in this day and age, continues to use the N-word … that really struck me as egregious,” Douglass, with the Northfield firm Burnham Douglass, said.
Davis claimed that in the past, sometime between 2011-2015, when she went to report verbal disrespect regarding her abilities, race, and gender, she was told by Skill that if she didn’t like it to “go pump gas.”
Davis alleged a five-letter pejorative starting with a “B” was how men in the prosecutor’s office referred to women in “everyday talk.”
In court filings, Davis said she was passed over for more favorable assignments to which she applied and instead was assigned in 2015 to the litigation unit, a job she said in court filings is seen “as punishment or for a figurative ‘timeout.’”
Additionally, Davis alleged she had a plan, in 2019, to minister the female inmate population at the county jail but was ordered by a lieutenant not to participate in the program.
She also alleged in court documents that Skill deleted emails from her account and notes from her phone after he became aware of the EEOC complaint. Through her lawyers, Davis claimed she even made an unsuccessful trip to the Apple Store to try to retrieve deleted information.
Gannon’s Claims
Gannon, a co-plaintiff in the suit, makes allegations of sexual harassment and gender-based discrimination.
In the complaint, she said she faced threats of termination in 2006, after it was discovered that she was pregnant when she was brought on full-time. She alleged she didn’t know she was pregnant at the time she accepted the position, but was accused of hiding it from supervisors, who then allegedly used other excuses to threaten to terminate her.
In the court documents, Gannon alleged that in 2009, when she went with coworkers for an after-work beer, “Skill turned around to visually scope out, in a very obvious way,” her buttocks.
Gannon claims she thought at first she must have had something on her jeans, based on the way her boss was looking at her. She claims in the lawsuit that she asked him what he was looking at, to which Skill allegedly replied, “I just wanted to see what you were working with,” adding, “I was just looking at your butt.”
Gannon alleged that, over the years, her superiors in the prosecutor’s office delayed her progression through the ranks. She said that after being denied for a promotion in 2017, she was ordered to write a memorandum, which led to an internal affairs report, into Vivarina.
According to the lawsuit, the investigation found Vivarina to have committed no criminal wrongdoing, leaving Gannon to be subjected to his “resentment and retaliation for her actions” related to the filing of the complaint.
She was also allegedly subjected to accusations from other colleagues, including Skill, that she filed the internal affairs action out of spite for not being promoted.
Gannon claimed in the suit that she “felt helpless and invalidated” by the male administration allegedly allowing Vivarina to do as he pleased without any ramifications.
She also said in the filings that she had things stolen off her desk – like Police Benevolent Association (PBA) cards and a training-issued book called “Effective Phrases for Performance Evaluations” – and had reason to believe Vivarina was behind it.
Gannon alleged that in 2018, Vivarina made a dirty, sexual joke involving a vacuum salesman in front of her and a group of other men.
She said she was repeatedly assigned menial tasks and treated like a “detective secretary” during her tenure.
Prosecutor’s Office Responds
A brief filed as part of the motion to dismiss by Richard L. Goldstein, an attorney representing the prosecutor’s office, Skill and Vivarina, focused mostly on legal arguments and the statute of limitations, not the substance of the allegations.
The motion to dismiss did refer to some of Davis’ allegations as being “rife with speculative and baseless assertions.”
Prosecutors also claimed denying Davis’ involvement in the jail ministry program was not an act of discrimination, but rather born of conflict-of-interest concerns. Had she interacted with inmates with pending charges as part of the program, she would have been violating their Sixth Amendment right to counsel, Goldstein argued.
In the brief, Goldstein also addressed allegations made by Gannon, writing the defendants “vehemently deny” her allegations, and made various legal arguments in an effort to get the judge to dismiss her claims.
Goldstein, of the firm Marshall Dennehey, in Mount Laurel, argued the judge should throw the case out because the women’s EEOC claims were not made in a timely fashion.
A spokesperson for the prosecutor’s office did not respond to an email from the Herald requesting comment on the lawsuit.
Judge Hillman Weighs In
Hillman ruled that many of the allegations are not time barred because specific pleadings fall within the statute of limitations, and there is an established pattern of conduct which the earlier alleged acts are part of, allowing them to come into the case.
Lawyers for the prosecutor’s office further argued that the claims don’t meet the “severe or pervasive” standard. However, the court, considering all well-pleaded allegations by the plaintiffs as true, and viewing them in the light most favorable to the plaintiffs, found that the claims were, in fact, severe and pervasive.
The judge threw out other counts because the plaintiffs did not make allegations of adverse employment action within the statute of limitations. An aiding and abetting claim made against Vivarina was also thrown out because the alleged conduct was outside the statute of limitations. However, a similar claim against Skill was allowed by the judge to proceed, because his alleged conduct was within the two-year limitation.
In total, five counts will be permitted to proceed and seven were dismissed in the initial stage of the case.
Goldstein did not respond to a request from the Herald for comment on the lawsuit.
An Institutional Problem?
Douglass said that after she filed the lawsuit on behalf of Gannon and Davis, she received calls from other employees, both on the investigative and legal sides of the prosecutor’s office, who said they had experienced similar conduct.
“They wanted to be represented,” Douglass said. “They backed out because they’re afraid of retaliation. … They became fearful, in terms of actually going forward and filing a lawsuit. It’s very hard, especially when you’re still working for the same employer.”
Douglass said she plans to call some of those women as witnesses for Gannon and Davis. Based on her conversations since filing the lawsuit, Douglass said she does see a broader problem.
“The situation is not unique to these two plaintiffs. I think there’s a systemic problem, or at least a perception within that department that there’s a problem. That’s mostly from the perspective of the female employees,” Douglass said.
Douglass said she believes Cape May County Prosecutor Jeffrey H. Sutherland inherited much of the problem. He is not a named party in the lawsuit. Sutherland was nominated for the county’s top law enforcement position by then-Gov. Chris Christie in late 2017.
Sutherland did not respond to an email requesting comment about this case.
Collateral Damage?
A criminal case against a prosecutor’s office sergeant, Robert Harkins, was brought after prosecutors said he conducted an unauthorized investigation in an attempt to solve a 2019 hit-and-run case in a drug store parking lot, in which his mother-in-law was the victim.
Harkins was indicted in January 2022 on second-degree official misconduct, third-degree tampering with public records or information, and fourth-degree falsifying or tampering with records charges.
Harkins was Davis’ direct supervisor at the prosecutor’s office and will likely be called as a witness for the two women, Douglass said. According to Davis’ lawsuit, Harkins was supportive of her and an ally of hers within the prosecutor’s office.
In the complaint filed by Gannon and Davis, the plaintiffs claim Harkins was supportive of the jail ministry program and met with his and Davis’ supervisors to support her plan and even suggested she should be commended for her willingness to volunteer for the program.
In the fall, speaking on the condition of anonymity, a source who was then close to Harkins told the Herald there could be a connection between the criminal charges he is facing, and the action brought against the prosecutor’s office by Gannon and Davis.
Douglass said she won’t make a judgement on the merit of the criminal charge against Harkins, but even if they have merit, she sees it as selective enforcement and feels the case has a direct correlation with Gannon and Davis’ employment complaints.
“Without a doubt,” Douglass said. “He knew what was happening was wrong. He saw it. … I do believe that is retaliatory based upon what I know.”
According to court documents filed by one of Harkins’ lawyers, the Middle Township police patrolman who responded to the scene was “uninterested” and blew off the investigation. So, Harkins took it upon himself to complete an investigation.
In the court filings, Harkins doesn’t dispute he subpoenaed the drug store for surveillance footage, obtained the suspect’s license plate from that footage, and then had a prosecutor’s office teammate run the plate.
After learning the identity of the vehicle’s owner, Harkins acknowledged he staked out the suspect’s home, in Court House, and photographed the vehicle, in a brief filed by his former lawyer.
Harkins then compiled a report and hand-delivered it to Middle Township Police Department, but instead of using it to go after the alleged hit-and-run driver, the department turned it in to Harkins’ superiors at the prosecutor’s office.
It’s the charges that came next that Douglass and the other source believe is a direct result of his support for Davis and Gannon.
“If, in fact, it was an infraction, they went after him with full force, in a selective enforcement kind of capacity. I would be shocked if others may not have engaged in similar, or worse, conduct that just goes ignored,” Douglass said. “They have a lot of discretion. There’s a lot of rules and regulations. They can choose what to enforce, how to enforce it and how tough they want to be in terms of enforcing it. I think they could have handled it much better, but for the fact that he was viewed as not being one of the loyalists to the chief detective.”
Meghan Hoerner, a criminal defense lawyer representing Harkins, did not respond to a request for her perspective on the connection between the two cases.
Brian Uzdavinis, the deputy attorney general assigned to prosecute Harkins, told the Herald he is aware of the allegations but said he is not permitted to respond to press inquiries on behalf of his office. He referred the newspaper to a member of the attorney general’s press office, who did not respond by the deadline given.
Harkins was last in front of Judge Bernard DeLury Jr. in October 2022. He will be back in front of DeLury March 17, where a motion to dismiss the case is scheduled to be heard, according to a court official. A prior motion to dismiss the case, filed by a different lawyer for Harkins, was denied by a different judge in June 2022.
What’s Next?
Gannon and Davis’ attorney, as well as the prosecutor’s office’s attorney,will appear for a scheduling teleconference in front of Magistrate Judge Elizabeth A. Pascal March 8.
Then, parameters and deadlines will be set for discovery and any settlement negotiations will be discussed. Parties must be “ready for trial within six to eight months,” the order for a scheduling conference states.
In the meantime, Gannon and Davis continue to go to work at the prosecutor’s office.
“It’s not comfortable,” Douglass, their lawyer, said.
Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.
