Lawyers for Marsha Lessard, , have asked the judge to reject a motion filed by city attorneys to dismiss Lessard's lawsuit.
Last month, They also argued that Lessard had failed to demonstrate that her allegations of retaliation were connected to her pursuit of an initial sexual harassment complaint filed with county and federal civil rights regulatory bodies in 2009.
But Lessard's attorneys rejected those arguments as "patently false and disingenuous" in court filings on Monday, saying that city attorneys ignored dozens of incidents alleged in Lessard's lawsuits that fell within a 300-day time limit to file a sexual harassment charge with the federal Equal Employment Opportunity Commission. Under federal equal employment law, one must first file a complaint with the EEOC for that body to investigate before one can file a sexual harassment lawsuit in federal court.
Lessard's attorneys argue that her allegations of sexual harassment were part of a "continuing violation" of her rights to equal employment opportunities.
"The 'continuing violation doctrine'…provides that a charge alleging a hostile work environment claim will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period," wrote Lessard's attorney in a memo opposing the city's motion to dismiss.
Thus, attorneys for Lessard argue that city attorneys, in their motion to dismiss, are trying to limit the scope of Lessard's lawsuit through the calendar. Under the city's motion, according to Lessard's attorneys, the court would be unable to consider any incidents which she alleged to have occurred outside of the 300-day EEOC filing limit.
That would mean that the court would be unable to consider hostile work environment claims alleged by Lessard before May 2008, a period which included the first three years of Lessard's employment with the city police department and less than a year after Lessard alleged that city police Sgt. Pat O'Hagan sexually assaulted her during a Fraternal Order of Police conference in Missouri in August of 2007.
How the city police department responded upon learning of the alleged sexual assault forms a major part of Lessard's complaint, in which she alleges that some of her coworkers and superiors in the police department were either indifferent to or retaliated against her after she complained about a sexually hostile work environment.
Among the dozens of incidents in Lessard's complaint which do fall within the 300-day limit are allegations that she was transferred and kept under O'Hagan's command, over her objections, in the months after the alleged attempted rape. Lessard remained under O'Hagan's command until Sept. 2008, less than 240 days before she filed her complaint with the EEOC. City attorneys, said that Lessard did not reveal the full nature of her objections to being placed under O'Hagan's command until much later.
Lessard's lawsuit breaks down into two categories; allegations of sexual harassment and allegations of retaliation after complaining to her superiors about sexual harassment.
In last month's motion to dismiss, which was opened after she notified city officials that she had retained a lawyer to pursue a sexual harassment complaint with the EEOC.
The internal investigation was fruitless, as the resident who filed the complaint against Lessard which became the basis for the investigation was unable to be found. Thus, city attorneys argued that the investigation was a legitimate effort to respond to a resident's complaint and not an act of retaliation.
But Lessard's lawyers said that city attorneys ignored a plethora of other allegations which could be considered retaliatory in nature.
"Instead - as it did with its untimeliness argument - it has attempted to limit its discussion of plaintiff's claims to the precise language of plaintiff's charge of discrimination," wrote Lessard's attorneys. "By ignoring all other allegations except defendants internal investigation….defendant is once again attempting to limit this court's subject matter jurisdiction without explicitly arguing that it should be limited."
Lessard's lawyers also argued that the city has failed to articulate a legitimate, non retaliatory justification for her dismissal from the police department.
City attorneys argue that Lessard was let go from city employment after she was unable to return to duty after being placed on administrative and family medical leave for more than six months, exhausting all of her leave.
"The city ignores the fact that it was the defendant's past and present actions that were medically preventing plaintiff from returning to the department - the place where she was experiencing continued harassment," wrote Lessard's lawyers in their response to the city's motion to dismiss.
In October 2008, the city police department ordered Lessard to see a psychologist hired by the city to examine her mental state as it related to her work. The psychologist found that Lessard was suffering from post-traumatic stress disorder stemming from what she described as a sexual assault against her at the 2007 Fraternal Order of Police national conference.
Lessard's attorneys argue that the city's psychologist also found that an ongoing hostile work environment exacerbated her stress to the point that she was unable to work.
"The defendant was not - as it assumes - left with no other option but to terminate plaintiff," wrote Lessard's attorneys. "Defendant could have either improved its hostile work environment or it could have transferred plaintiff into another position."
Attorneys for the city can submit a reply to Lessard's memo. If no reply is filed, the judge could rule on the city's motion to dismiss within the next month. If the motion to dismiss is upheld, the case would end. If the motion to dismiss is rejected, the case moves into the discovery phase in which the legal teams conduct research to bolster their claims.