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Federal judge tosses gay cop's harassment, discrimination suit

By KELLY NIX

Published: October 23, 2009

A FEDERAL judge has ruled in favor of the City of Pacific Grove, its police department and two chiefs over a lawsuit filed by a police officer who alleged he was denied promotions and harassed because he is gay.

In a summary judgment Oct. 16, U.S. District Court Judge Ronald M. Whyte ruled against P.G. Police Sgt. Darrin Smolinski, whose federal discrimination lawsuit, filed in April 2008, targeted the city, former police chief Scott Miller and present chief Darius Engles.

Smolinski claimed that for 10 years on the force, he was the target of jokes and ridicule because he is gay, and that little was done to stop the harassment. He also alleged a pattern of denied promotions.

The officer had accused the department of retaliation, negligence, intentional infliction of emotional distress and discrimination.

But Whyte found Smolinski had ĺ─˙not raised a triable issue of factĺ─¨ to support his claims.

ĺ─˙At best,ĺ─¨ Whyte said in the six-page judgment, ĺ─˙plaintiff has come forward with evidence that his sexual orientation was known to some within the department, and that over the course of his 10-year tenure, he has been offended by some comments and conduct, only a few of which were directed at him.ĺ─¨

Smolinskiĺ─˘s attorney, Stephen Usoz said Thursday the judgement was unfortunate.

ĺ─˙Obviously, it didnĺ─˘t go in Darrinĺ─˘s favor,ĺ─¨ he told The Pine Cone. ĺ─˙We are reviewing it for purposes of appeal.ĺ─¨
Whyte also said Smolinski had not shown the alleged offensive comments or conduct were pervasive enough to give rise to his claim he worked in a hostile work environment.

ĺ─˙The fact that some fellow officers made comments that could be construed as derogatory toward homosexuals over plaintiffĺ─˘s many-year career and that at a period of time an outsider sent harassing correspondence to the department does not meet requirements for a hostile work environment,ĺ─¨ Whyte said.

Whyte found Smolinski also didnĺ─˘t provide any evidence of anti-homosexual attitude by Miller and former city manager Jim Colangelo, who turned down Smolinski for commander in favor of another officer.

Smolinski also failed to show that the city, its police department and Miller had engaged in ĺ─˙willful, malicious and outrageous conduct,ĺ─¨ according to the ruling.

At the time Smolinski was up for promotion to commander, Whyte said there was evidence Miller told Colangelo he believed the officer was dishonest. But the evidence also showed Colangelo disregarded Millerĺ─˘s comment and based his decision not to promote Smolinski on what Colangelo considered to be the officerĺ─˘s unsatisfactory interview, according to Whyte.

Decade of harassment alleged

Smolinski alleged in his suit that problems began a decade ago when Miller was police chief. He said the problems continued when Chief Darius Engles was hired in 2006. Engles announced his resignation in August.

Smolinski sought an unspecified amount of money in damages. He claimed the police departmentĺ─˘s email system was used to ĺ─˙circulate information which utilized derogatory terms and statements relating to homosexual and bisexual individuals.ĺ─¨

One joke, entitled, ĺ─˙Time for your annual ĺ─˛Am I Gayĺ─˘ self examination,ĺ─¨ included seven off-color, disparaging questions, he said. The sender included a disclaimer that the message was intended as a joke.

Though he said he was denied promotions, Smolinski maintained he received ĺ─˙multiple commendationsĺ─¨ and top scores during promotional interviews. The suit also alleges Smolinski was retaliated against and suffered depression and anxiety because of his support for a bisexual coworker, Rhonda Ramey, a former parking officer. Smolinski claimed he wasnĺ─˘t promoted as retaliation for his support of Ramey, who filed a complaint in 1999 against Miller for not disciplining a supervisor who had ĺ─˙harassed her for being bisexual and having an open marriage.ĺ─¨

In June 2001, six months after Miller fired Ramey, she filed a federal harassment and retaliation lawsuit against Miller. Smolinski helped Ramey prepare for trial and testified in court on her behalf against Miller. A jury later ruled in favor of Miller.