Village of Tequesta s Position Statement October 15, 2012

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1 Village of Tequesta s Position Statement October 15, 2012 The Village of Tequesta denies that employee Tara Luscavich has been subjected to unlawful harassment or discrimination based on her gender, and it denies that Ms. Luscovich was ever subjected to unlawful retaliation. I. Preliminary Procedural Issue The Village of Tequesta ( Village ) objects to the fact that the charging party Tara Luscavich filed two separate but identical charges in this matter: On September 13, 2012, the EEOC issued a Notice of Charge of Discrimination with the above-referenced charge number. It was based on a charging document signed by Tara Luscavich on September 4, 2012 that appears to have been faxed to EEOC on that date at 13:18 hours by the Garcia Law Firm. In this charge, Ms. Luscavich signed the following: I do not want this charge filed with both the EEOC and the State or local Agency, if any. (emphasis added) The sworn signed statement provided by Ms. Luscovich in this case is identical to the sworn statement provided to FCHR in case /EEOC Charge 15D FCHR Charge Number /EEOC Charge Number 15D On September 17, 2012, FCHR issued a Notice of Charge of Discrimination with the above-referenced charge numbers. It was based on a charging document signed by Tara Luscavich on September 4, 2012 that appears to have been faxed to FCHR on that date at 12:50 hours by the Garcia Law Firm. As in the separate EEOC charge above, Ms. Luscavich signed the following: I do not want this charge filed with both the EEOC and the State or local Agency, if any. (emphasis added) The sworn signed statement provided by Ms. Luscovich in this case is identical to the sworn statement provided to EEOC in case The Village should not have to expend the resources necessary to respond to both of these charges. Nor should EEOC and/or FCHR have to expend limited resources investigating and processing two identical claims. The Village notified FCHR about this issue by phone and . The Village understands that FCHR is reviewing the matter, and will advise the Village about how the agencies intend to process these claims. 1

2 In order to assist EEOC and FCHR in this matter, the Village is providing each agency with a copy of this position statement that responds to and refutes the charges raised by Ms. Luscavich. However, the Village objects to being subject to any additional requests from either agency, until it is advised how the agencies have resolved the question about how they are going to share the work and process these identical charges. In addition, the Village reserves the right to amend this response as needed when the agencies have clarified how they intend to process the charge. II. Sexual Harassment Claim is Barred Because It Was Not Filed on Time Ms. Luscavich charges that she was subjected to a very offensive sexual act by Gerald Pete Pitocchelli 1 on March 11, The Village denies that the events at the party took place as described by Ms. Luscavich. More importantly, it is too late for Ms. Luscavich to file a claim based upon any events that are alleged to have taken place in March The time limit for filing claims with EEOC in Florida is 300 days. The time limit for filing claims with FCHR is 365 days. Ms. Luscavich has failed to meet either deadline. III. Claims of Retaliation Are Without Merit Ms. Luscavich has not stated a retaliation claim. In order to make a valid claim for retaliation, she must allege that she made a complaint about discrimination or some similar unlawful practice, and that she was subjected to adverse employment action as a result. A. Elements of Retaliation Claim Specifically, under Title VII, employers are prohibited from discriminating against an employee who has either (1) opposed an employment practice made unlawful under Title VII, or (2) made a charge, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C.S. 2000e-3(a). In order to state a claim for retaliation, the charging party must allege that (1) she engaged in statutorily protected opposition to an unlawful practice, or participated in an investigation of an unlawful practice; (2) that she was subjected to adverse employment action; and (3) there was a causal link between the opposition or participation and the adverse employment action. 1 / At the time of the March 2011 party, Pitocchelli was not the Chief of Police, and he was NOT expected to become Chief of Police. Pitocchelli was a Lieutenant who was NOT in Ms. Luscavich s chain of command. In her claim, Ms. Luscavich alleges that at the time of the March 11, 2011 party it was known that Pitocchelli, then a Lieutenant, would be promoted to Chief of Police. This is not true. In fact, as of early March 2011, the Village s intent was to conduct a search and hire a Chief from outside of the department. This was common knowledge, and it was common knowledge at that time that Pitoccelli was not being considered for the position. Pitocchelli was not a candidate for Police Chief until approximately June of He became the Chief of Police on July 5,

3 B. Ms. Luscavich Has Not Engaged In Any Protected Activity In this case. Ms. Luscavich has not alleged (and could not truthfully allege) that she engaged in statutorily protected opposition to an unlawful practice, or participated in an investigation of an unlawful practice. It is important to note that Ms. Luscavich could have made such a complaint to the Village, but she did not do so. The Village of Tequesta has a policy prohibiting illegal discrimination and retaliation. (Attachment 1) The policy provides a procedure to be followed by an employee when he/she believes that he/she has been subjected to unlawful discrimination, harassment, or retaliation. (See Personnel Policy 3.4, Section VI, Attachment 1, page 3) Ms. Luscavich was made aware of the Village policy. She was provided a copy of the Village s employee handbook that includes the policy when she was hired in 2005, and she acknowledged receiving updated versions on October 27, 2008 and on October 1, (Attachments 2-4) In addition, Ms. Luscavich received Unlawful Harassment Training on February 17, (Attachment 15) Under the Village policy, Ms. Luscavich had the ability to immediately file a written complaint about the matter with the Village Human Resource Manager. Ms. Luscavich filed no such complaint, and she never brought her concerns to the attention of the Human Resources manager or any other member of the Village s management team. The first time the Village became aware of Ms. Luscavich s concerns was when it received the EEOC notice of her charge in September C. Ms. Luscavich Has Not Been Unlawfully Subjected to Adverse Employment Action Ms. Luscavich s claims that she was unlawfully subjected to adverse employment action are without merit. Ms. Luscavich claims that she has been retaliated against because she was denied a temporary position, she was subjected to disciplinary action, the department interfered with her training opportunities, and the Chief acted in a hostile way towards her. As explained below, none of these claims are correct. 1. Temporary Promotion to Dispatch Supervisor Was Given To Most Qualified Person Ms. Luscavich alleges Chief Pitocchelli retaliated against her by denying her a temporary promotion where she could have stepped up to be a dispatch supervisor for a short period of time. She incorrectly alleges that a lesser experienced woman was appointed to take the position. 3

4 The correct facts are: Dispatch supervisor Jennifer Gazo took eight weeks of FMLA leave beginning on March 6, The person who was selected to be a step up supervisor during that time was dispatcher Jackie St. Charles. Ms. St. Charles was more qualified for the step up supervisor position by virtue of the following: Seniority -- Ms. St. Charles has more experience working in the police dispatch unit at the Village of Tequesta Police Department than Ms. Luscavich. Jackie St. Charles began working at the Village on June 13, Tara Luscavitch began working on October 10, Certified Communication Training Officer (CTO) Ms. St. Charles was and is a certified Communication Training Officer (CTO). As such, she has the credentials and skills needed to train other dispatchers. Ms. Luscavich is not a certified CTO. Terminal Agency Coordinator (Tact) -- Ms. St. Charles was and is the agency s terminal agency coordinator (Tact) for the Communication section. The Tact is the liaison with the Florida Department of Law Enforcement (FDLE) dealing with the MCIC/FCIC computerized criminal record check system. The Tact is responsible for assuting that all information entered into the NCIC/FCIC system by the Village is correct, and is responsible for assisting FDLE with an annual audit of the NCIC/FCIC system. Ms. Luscavich did not have this credential. Existing Work Schedule The dispatch supervisor works on the day shift because of the administrative duties associated with the position. Ms. St. Charles was already working the day shift during the time that Ms. Gazo was out on FMLA leave. Ms. Luscavich was working the night shift. 2. Disciplinary Action Was Imposed Fairly; Others Were Disciplined When They Violated The Policy That Ms. Luscavich Violated Ms. Luscavich next claims that she was subject to retaliation because she received verbal reprimands from her supervisor and her Lieutenant. Specifically she is claims that she has been denied the right to talk with officers during down time. Ms. Luscavich s claims in this matter are not correct. First, she has not been subject to any verbal reprimands from her immediate supervisor, Jennifer Gazo. Second, the only reprimand of any kind that was issued against her by her Lieutenant (Lt. Jason Turner), was for violation of a longstanding policy of the Department that persons are not permitted to waste time in dispatch, and should only be in dispatch to conduct official business. Ms. Luscavich was not singled out on this issue. Other employees who violated the same policy were also given reprimands. The Village of Tequesta has a small Police Department, with just 4 dispatchers. Dispatchers work alone, and need to focus their attention on their job in order to assure that emergency calls 4

5 from residents are responded to promptly and processed correctly. Because of that, it has been the longstanding policy and practice at the Department that persons who are not dispatchers should not be in the dispatch center except for limited periods of time when they are on official business. The Department s General Orders, going back as far as 1998, state that access to the Police Department Communications Center is limited to assigned members and members having official business in the center. (Attachments 5-6) This policy was emphasized by Chief Pitocchelli in an he sent to all department personnel on January 23, The Chief stated: Officers or visitors are not allowed in dispatch unless official business is being conducted. No group breaks or hanging out before or after shifts. Dispatchers are allowed to be relieved for their breaks. If paperwork needs to be exchanged it should be done in a timely fashion. (Attachment 7) On August 14, 2012 Officer Robert Worcester was found to be in dispatch talking with Tara Luscavich. Officer Worcester and Tara Luscavich were not engaged in official business. They were in violation of the policy, and in violation of Chief Pitoccelli s January 23 directive. Therefore, Lt. Turner issued a verbal reprimand 2 to both Officer Worcester and Ms. Luscavich. (Attachments 8-9) Lt. Turner explained in his memo to Ms. Luscavich that this was not the first time that she was involved in such a violation. He reminded her that he had given her specific guidance in the past that if an officer or visitor was in dispatch and did not have official business to conduct, that she should request that they leave. He had also told her that if someone refused to leave when she requested them to do so, or if she felt uncomfortable in asking them to leave, that she should let the Lieutenant know. Ms. Luscavich did not follow this instruction. Therefore, Lt. Turner issued a verbal reprimand to her. Ms. Luscavich was not singled out for discipline on this matter. When the Department is aware of any person violating that policy, similar disciplinary action is taken. For example, during the same time period that Ms. Luscavich was given a verbal reprimand for this matter, the Department also issued verbal reprimands to 4 others: Officer Robert Worcester (Attachment 9) Dispatch Supervisor Jennifer Gazo (Attachment 10) Officer Derick Velez (Attachment 11) Officer Michael Valerio (Attachment 12) 2 / The Department maintains records of verbal reprimands on a form called Tequesta Police Department Supervisor Documentation Report. 5

6 3. Ms. Luscavich Was Provided Training; Chief Pitocchelli Did Not Interfere With Any Training Opportunities Neither Chief Pitocchelli, nor anyone at the Police Department has interfered with training opportunities for Ms. Luscavich. Since the time that Chief Pitocchelli has been Chief, Ms. Luscavich has participated in the following training: CJIS Certification/Recertification Training August 22, 2011 Crisis intervention Training October 3-5, 2011 Unlawful Harassment Training February 17, 2012 (Attachments 13-15) The Department is aware that Ms. Luscavich was concerned that she did not have the opportunity to participate in a voluntary computer refresher training class that was presented by CTS (SmartCop) on August 14, This was not mandatory training, and was merely a refresher course offered to those interested. The training was presented by an outside firm, and the Department did not have control over the scheduling. On the day that the training was scheduled, Ms. Luscavich had worked the midnight shift just prior to the start of the training, and was scheduled to come back to work later that day. It would not have been possible for her to have a rest period if she attended the session. Therefore, her supervisor Jennifer Gazo did not schedule her to be at the training. Ms. Luscavich was not the only dispatcher who did not attend the training. Kelly Anderson also did not attend. However, Jennifer Gazo advised that she and Jackie St. Charles (who attended the training) would train other dispatchers who were not able to attend the session. (Attachment 16) 4. Chief Pitocchelli s Actions Related to Luscavich Have Not Been Hostile; Chief Has Given Her Satisfactory Performance Reviews, Supported Her Training Requests, and Otherwise Supported Her. Chief Pitocchelli has not been hostile, discriminatory, or otherwise unfair to Tara Luscavich during the time that he has been Chief of Police. He has not taken any retaliatory action against her. On the contrary, he has been supportive of her requests for training and for improvements in her working conditions, and has given her a satisfactory performance appraisal. Neither the Chief, nor anyone else at the Village has taken unlawful action that adversely impacts any of the terms or conditions of her employment with the Village. The Department has issued one performance evaluation of Luscavich in the past year. On October 7, 2011, Ms. Luscavich was rated satisfactory in all categories. Chief Pitocchelli accepted the rating and signed to approve it on October 7, 2011 (Attachment 17) This was a better evaluation than the one that Ms. Luscavich received the previous year, when she was given an unsatisfactory rating in two areas. (Attachment 18) 6

7 Chief Pitocchelli has approved the following training requests for Ms. Luscavich: CJIS Certification/Recertification Training August 22, 2011 Crisis intervention Training October 3-5, 2011 Unlawful Harassment Training February 17, 2012 (Attachments 13-15) Chief Pitocchelli also supported Ms. Luscavich s requests to change the dress code in the dispatch center. She requested that employees be permitted to wear jeans, and open toe shoes including flip-flops and sandals. The Chief approved the requests. (Attachment 19) These revisions were viewed as favorable by the employees in the dispatch center. If the Chief wanted to take adverse employment action against Ms. Luscavich, he could have taken action against her in July At that time, Sergeant James Pike complained to the Chief that Luscavich had been insubordinate. Pike and Luscavich got into a dispute at work when Luscavich removed a TV remote control from the dispatch center and put it in her purse in order to keep it from Pike. Pike demanded that she return the remote control, and he told her that he was going to report her to the Chief. Pike called the Chief in and told him about the problem he was having with Luscavich. The Chief did not take any action against Luscavich. If he had been determined to retaliate against her, this would have been an optimal time for him to impose disciplinary action. Sgt. Pike complained to the Chief that Luscavich had been insubordinate. Luscavich acknowledged that she had taken the remote, put it in her purse, and had initially refused to comply with Pike s request that she return it. Under the circumstances, disciplinary action for insubordination could have been justified. But the Chief did not take any such action. He essentially accepted Luscavich s explanation that she thought Pike had been joking and took no action against her. IV. Conclusion The Village of Tequesta has treated Luscavich fairly and lawfully. Her claims are without merit. The Village requests that EEOC and FCHR dismiss the charges. 7

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