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Middleton v. City of Tucson

United States District Court, D. Arizona

July 17, 2017

Andrea Middleton, Plaintiff,
v.
The City of Tucson, et al., Defendants.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Defendant City of Tucson's Motion for Summary Judgment (Doc. 53). Defendant has also filed a Statement of Facts in Support of Its Motion for Summary Judgment (“SOF”) (Doc. 54). Plaintiff has responded (Doc. 61) and filed her separate Objections to City's Statement of Facts and Plaintiff's Statement of Facts and Exhibits Opposing Summary Judgment (“SSOF”) (Doc. 60), and Defendant replied (Doc. 62). Additionally, Plaintiff filed a Supplemental Summary Judgment Brief (Doc. 66) and Defendant responded to the same (Doc. 67).[1] As such, the motion is fully briefed and ripe for adjudication.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. On May 23, 2017, Judge Macdonald heard oral argument. Minute Entry 5/23/2017 (Doc. 63). The Magistrate Judge recommends that the District Court grant in part and deny in part Defendant's motion for summary judgment (Doc. 53).

         I. FACTUAL BACKGROUND

         A. Plaintiff's Employment at the Tucson Police Department and her Relationship with Lt. Greene

         Plaintiff Andrea Middleton graduated from the police academy and began employment with the Tucson Police Department (“TPD”) in September 2005 as a patrol officer. Pl.'s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 3; see also Pl.'s First Amended Complaint (“FAC”) (Doc. 39) at ¶ 10. In early 2009, Plaintiff met Lt. Greene in the course of her employment when he spoke with her about contacting a defense lawyer for an interview. Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 4; see also Pl.'s FAC (Doc. 39) at ¶ 13. In February 2009, Plaintiff began dating Lt. Frank Greene which was mutual and welcome at the time it started.[2] Pl.'s FAC (Doc. 39) at ¶¶ 13-15. At the time their relationship started, Lt. Greene was Plaintiff's direct supervisor and approximately twenty-three (23) years her senior. Id. at ¶¶ 13-14. Plaintiff described Lt. Greene as “approximately 6' 1” tall and weigh[ing] approximately 270 pounds.” Pl.'s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 9. She further stated that Lt. Greene “was a dedicated weightlifter and had the physique of a bodybuilder[, ] . . . [with] an established reputation within the TPD as being an intimidating, physically threatening person.” Id.

         In August 2009, Lt. Greene ceased to be in Plaintiff's chain of command.[3] Id.; Def.'s SOF (Doc. 54), Middleton Depo. 12/14/2016 (Exh. “B”) at 24:21-25:1. When Plaintiff and Lt. Greene began dating, they kept the relationship secret from TPD, because they knew that while TPD did not prohibit officers from having off duty relationships, TPD did have a policy that prohibited romantically involved officers from being in the same direct supervisory chain of command. Def.'s SOF (Doc. 54), Exh. “B” at 12:3-23. Plaintiff states that although she “was generally aware of th[e] rule [regarding supervisor-subordinate relationships, ] . . . [she] did not have any experience with how it was interpreted or applied.” Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 11. Plaintiff asserts that she “was uncomfortable trying to maintain a secret relationship[, ] but . . . [] followed Lt. Greene's instruction that [she] had to keep it secret.” Id., Exh. “1” at ¶ 12. Their relationship remained consensual until shortly before Middleton was placed on administrative leave for abuse of confidential police computer information in November, 2012. Def.'s SOF (Doc. 54), Exh. “B” at 64:23-65:15.

         Plaintiff asserts that “[f]rom the beginning of their relationship, Lt. Greene was insecure, jealous, and controlling of [her] behavior while she was on duty as a patrol officer.” Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 13. Plaintiff further asserts that Lt. Greene's “jealous[y] and controlling behavior toward her while she was on duty increased significantly in the summer of 2009[, ] and grew worse until the end of her employment. Id. Plaintiff states that “from the beginning of [their] relationship, [Lt. Greene] wanted [Plaintiff] to keep him informed of [her] location and what [she] was doing while on duty, and specifically whether [she] was interacting with male fellow officers, male complainants, or Tucson Fire Department personnel.” Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 15. Plaintiff further asserts that “Lt. Greene discouraged and told [her] not to volunteer to respond to calls where male Tucson Fire Department personnel were likely to be present[, ] because he was concerned [that she] might flirt with them.” Id., Exh. “1” at ¶ 14. Plaintiff states that if she did not follow Lt. Greene's instructions “sufficiently to his liking, he would become angry and call or text [her] and angrily call [her] vulgar names, usually some variation of ‘fucking whore' or ‘cunt' and other nasty, sexually related slurs.” Id., Exh. “1” at ¶ 16. Plaintiff claims that she first became aware of Lt. Greene's jealousy and temper ten (10) days after she first dated him in February 2009, when he berated her for what he believed was a ‘date, ' but what was really a birthday dinner with her parents. Def.'s SOF (Doc. 54), Middleton Depo. 12/15/2016 (Exh. “A”) at 8:9-21.

         In June 2009, Plaintiff states that she was swimming with Lt. Greene at his home and he wanted to engage in sex, which Plaintiff declined. Pl.'s SSOF (Doc. 54), Exh. “1” at ¶ 17. Plaintiff asserts that Lt. Greene “became enraged and threw a deck chair against a patio pillar, damaging the pillar.” Id. Plaintiff states that she “went inside [Lt.Greene's] house to get [her] things and leave[, ] [and] Lt. Greene confronted [her] and blocked the exit door in the laundry room [she] was trying to use to leave.” Id. Plaintiff further states that when she tried to leave, Lt. Greene “grabbed and tore and ripped the tank top [she] was wearing, exposing [her] breasts[, ] [and] . . . punched a hole through a wooden back door.” Id. Plaintiff asserts that she was too afraid to report this incident to TPD, because she feared what Lt. Greene would do in retaliation. Id. Plaintiff also states that “[o]n another occasion[, ] early in [their] relationship[, ] . . . Lt. Greene . . . threw a pointed tipped bottle opener toward [Plaintiff] and it stuck in the wall behind [her.]” Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 18. Plaintiff states that she “stayed in a relationship with Lt. Greene . . . because [she] . . . hop[ed] [it] was an isolated incident[, ] and because [she] was scared of how he might react if [she] tried to end the relationship.” Id., Exh. “1” at ¶ 19.

         B. The 2009 Incident and Investigation

         On December 4, 2009, Plaintiff and Lt. Greene were involved in a verbal altercation which escalated to a physical fight while off-duty at Lt. Greene's home. Def.'s SOF (Doc. 54), TPD Personnel Rpt. Re: Office of Internal Affairs (“OIA”) Case No. 09-0853 (Exh. “C”) at Bates No. 471COT0063. “Both parties sustained physical injuries.”[4] Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff objects to any suggestion that she and Lt. Greene “were equally ‘involved' in the argument and domestic violence assault” on this date. Pl.'s SSOF (Doc. 60) at 1. Plaintiff maintains that Lt. Greene was the sole aggressor and that she was the victim. Pl.'s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶¶ 23-24.

         1. Plaintiff's Statement

         Plaintiff states that on December 4, 2009, she had gone to Lt. Greene's “house in the evening to socialize and decided later to leave without engaging in sex.” Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 23. Plaintiff further states that “Lt. Greene got angry and accused [her] of lying about the last time [she] had seen an old boyfriend.” Id. Plaintiff further asserts that “Lt. Greene became enraged and would not let [her] leave[, ]” despite her insistence and attempts to do so. Id. Plaintiff “picked up [her] duffel bag containing [her] uniform and duty belt and slung it across [her] shoulder, Lt. Greene grabbed the strap and used it to violently pull [her] down on the bed in his bedroom.” Id. The force of this action “caused bruising on [Plaintiff's] shoulder and chest, ” which were photographed the following day by TPD Office of Internal Affairs investigators. Id. Defendant asserts that “[t]he bruises were from [Plaintiff's] heavy equipment bag getting tangled up while she was getting up and down[, ] and that Greene did not hit her or grab the bag.” Def.'s SOF (Doc. 54) at ¶ 40(a) (citing Middleton Interview, Case No. 09-0853 (Exh. “C”) at 47:2-48:23 (Bates Nos. 471COT0536-471COT0537). Plaintiff characterizes this statement as “a partial and seriously misleading excerpt of Ms. Middleton's testimony to IA investigators.”[5] Pl.'s SOF (Doc. 60) at 3:12-13. During her interview, Plaintiff stated “I don't even remember if he grabbed the bag or if he like grabbed the bag and pushed the bag and I went with the bag because it probably weighed more than I do[.]” Def.'s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0536:25-28. Further, at the start of the interview, Plaintiff explained that she “kept picking up [her] bag, which had, cuz I had all my work stuff cuz I came right over there from work and so it was full and so he pulled it and then fell on the bed[, ] [a]nd then every time [Plaintiff] [got] up, he'd pull it and it'd rip and then, cuz the, the strap kept grinding on my arm[.]” Pl.'s SSOF (Doc. 60), OIA Case No. 09-0853, Middleton Interview (Exh. “3”) at Bates No. AM010:23-31. Plaintiff stated that Lt. Greene “wasn't holding [her] down[, ] . . . but every time[, ] uh, I would try to get up, I'd be pushed back down.” Pl.'s SSOF (Doc. 60), Exh. “3” at Bates No. AM016:22-28. Plaintiff agreed with the interviewer's paraphrasing of Plaintiff's description as Lt. Greene “[s]watting [her] down as soon as [she] tried to get up[.]” Id., Exh. “3” at Bates No. AM016:39-41. Later in the interview, Plaintiff explained that her bag “kept flying down[, ] [a]nd so it was pinching so freaking bad right there[, ] . . . the whole thing ended up getting twisted because I get on the bed, and I'd like wrap around and then I'd get back up and it just kept making this huge freaking knot around my arm.” Def.'s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0537. Plaintiff went on, “So every fucking time I fell back on the bed, it[, the bag and strap, ] just got, kept getting tighter.”[6] Id. Plaintiff further asserts that Lt. Greene threw a boot at her, and as she continued to try to leave, “grabbed the butt grip of my holstered duty pistol and said, “Are you scared now?” Pl.'s SSOF (Doc. 60), Middleton Decl. (Exh. “1”) at ¶ 25. Plaintiff states that “[a]fter that statement, Lt. Greene snapped out of his rage and became apologetic, stating how sorry he was.” Id., Exh. “1” at ¶ 26. Plaintiff also asserts that “[t]his became a regular pattern during [their] relationship, with Lt. Greene becoming angry with [her] and making physical threats of harming [Plaintiff] or [her] family, and then becoming apologetic.” Id. After Plaintiff left Lt. Greene's house she “stopped in a parking lot for a while just to stop shaking[, ]” and then called Lt. Greene who asked her to come back to his house, which she did. Def.'s SOF (Doc. 54), OIA Case No. 09-0853, Middleton Interview (Exh. “C”) at Bates Nos. 471COT0516:33- 471COT0517:3.

         2. Lt. Greene's Version

         Lt. Greene told investigators that the argument was just verbal, never became loud, and he “told [Plaintiff] to pick up her stuff and go if she needed to go[, ] so she packed up and left and then she came back about a half hour later and we went to bed.” Pl.'s SSOF (Doc. 60), OIA Case No. 09-0853, Greene Interview (Exh. “4”) at Bates No. AM313. Lt. Greene later told investigators that Plaintiff initiated the first physical contact which resulted in her bruises, then as he tried to break off her attack she grabbed his finger. See Def.'s SOF (Doc. 54), Exh. “K” at Bates No. AM161. Lt. Greene also stated that a bruise inside of Plaintiff's upper left arm came from him trapping her arm against her body when she put her hand on her gun. Id., Exh. “K” at Bates No. AM162:1-42. Lt. Greene further asserted that Plaintiff tried to hit him with her car when she left his house. Id., Exh. “K” at Bates No. AM165:21-36. Lt. Greene also alleged that Plaintiff asked him to kill two of her former boyfriends. See id., Exh. “K” at Bates. Nos. AM166-AM167.

         3. Investigation Outcome

         Initially, this incident was investigated as possible criminal misconduct involving domestic violence/assault. Def.'s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0055. As outlined above, precisely how the fight took place and its escalation are described differently by each party. Id., Exh. “C” at Bates No. 471COT0063. Neither Plaintiff nor Lt. Greene reported the incident to their respective supervisors. Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff did, however, tell a friend about what had occurred, and the friend reported the incident to TPD OIA. Def.'s SOF (Doc. 54), Middleton Depo. 12/15/2016 (Exh. “B”) 13:8-14:11; see also Exh. “C” at Bates No. 471COT0055. OIA interviewed both Plaintiff and Lt. Greene, and obtained other evidence. Def.'s SOF (Doc. 54), Exh. “C” at Bates Nos. 471COT0055-56, 471COT0059, 471COT0063, 471COT0073.

         Plaintiff told investigators that she did not believe that this sort of incident would happen again. Def.'s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0496:20-26. Plaintiff also stated that investigators wouldn't “find anybody more honest” than Lt. Greene and that his “honesty is impeccable.” Id., Exh. “C” at Bates Nos. 471COT0500:11-18, 471COT0501:23-26. During the investigation, Plaintiff indicated that she was not trying to minimize anything or protect Lt. Greene. Def.'s SOF (Doc. 54), Exh. “C” at Bates Nos. 471COT0509:20-471COT0510:14. Lt. Greene told investigators that Plaintiff was always portraying herself as a victim. Def.'s SOF (Doc. 54), OIA Case No. 09-0853, Greene Interview (Exh. “K”) at Bates No. AM153:1.

         Plaintiff further stated that she kept Lt. Greene informed about what she was doing, and that was more her thing than his. Def.'s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0513:17-37. Plaintiff also explained that allowing Lt. Greene to see her phone or answer it was her idea, and not because he wanted to check up on her. Id., Exh. “C” at Bates No. 471COT0526:21-37. Lt. Greene characterized Plaintiff as jealous of other women and insistent that he keep her informed of what he was doing. Def.'s SOF (Doc. 54), Exh “K” at Bates No. AM153:19-42.

         The case was reviewed by the City prosecutors who declined to file criminal charges against either of the parties. Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff and Lt. Greene were admonished not to discuss the matter pending the OIA investigation. Id., Exh. “C” at Bates Nos. 471COT0059, 471COT0073. Plaintiff text messaged Lt. Greene and discussed the investigation, as well as discussed the incident with a coworker. Id., Exh. “C” at Bates No. 471COT0059. She was suspended for twenty (20) hours. Id. Lt. Greene “text messaged an unidentified and unauthorized person with the intention of directing that person not to cooperate with investigators if contacted by the Office of Internal Affairs.” Def.'s SOF (Doc. 54), Exh. “C” at Bates No. 471COT0073 (quotations omitted); see also Pl.'s SSOF (Doc. 60), TPD Personnel Rpt. (Exh. “2”) at Bates No. AM008. Lt. Greene was given a thirty (30) hour suspension. Id. Plaintiff later admitted that she tried to minimize Lt. Greene's conduct because of their continuing relationship, as well as her fear about how he would react to her providing information regarding the incident to the OIA. Def.'s SOF (Doc. 54), Middleton Depo. 12/14/2016 (Exh. “A”) at 12:23-14:6; Pl.'s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶¶ 27-28.

         C. Reactions to the 2009 Incident and Investigation

         While the 2009 Internal Affairs investigation was pending, Sergeant Pete Trusko, one of Plaintiff's supervisors, told Plaintiff that she needed to be careful because she now “had a target on her back” as a result of having complained about Lt. Greene. Pl.'s SOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 35. Plaintiff states that she found this statement “scary and distressing, ” because it came from a supervisor. Id. Moreover, the statement discouraged Plaintiff from complaining further about Lt. Greene's conduct, because she felt she would be “targeted” for reporting any concerns. Id. Sgt. Trusko also told Plaintiff that he was being pressured by more senior supervisors to “keep a close eye on” and watch Plaintiff, because of her involvement in initiating a potentially serious Internal Affairs investigation against a senior member of the command staff. Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 36.

         Plaintiff asserts that she felt like she “was being punished for having told Internal Affairs that Lt. Green had assaulted [her], and [she] was surprised at how little discipline Lt. Greene received given the findings of the Internal Affairs investigators about domestic violence and witness tampering.” Id., Exh. “1” at ¶ 39. As a result of the investigation and the statements by Sgt. Trusko, Plaintiff felt it would be pointless to lodge complaints about Lt. Greene's continuing harassing conduct toward her. Id., Exh. “1” at ¶ 40.

         D. Lt. Greene's Post-2009 Treatment of Plaintiff

         Beginning in 2009, Lt. Greene insisted that Officer Middleton not wear makeup while on duty; she wear her hair modestly, in a tight bun; she dye her hair a darker shade instead of blonde; and wear sunglasses to cover her eyes. Pl.'s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 44. Regarding Lt. Greene's insistence that Plaintiff wear sunglasses while on duty, because he did not want her looking at male officers with her “come fuck me eyes, ” Plaintiff asserts that Lt. Greene's statement made her feel humiliated and objectified as a sex object, not a professional police officer. Id., Exh. “1” at ¶ 45. Plaintiff states that Lt. Greene also repeatedly said that the only reason she would wear makeup would be to attract other guys so she could sleep with them. Id., Exh. “1” at ¶ 46. Plaintiff also asserts that Lt. Greene insisted that she be speaking with him on his cellular telephone as she entered daily, pre-shift squad briefings, so that he could know that she was not speaking with other mostly male officers and so that male fellow officers would know she was speaking with him. Id., Exh. “1” at ¶ 51.

         As Plaintiff's relationship with Lt. Greene continued in 2010, he increasingly monitored what she was doing while on duty and questioned her about every detail of her patrol shifts. Pl.'s SSOF (Doc. 60), Middleton Decl. 4/25/2017 (Exh. “1”) at ¶ 42. Plaintiff stated that Lt. Greene would become jealous, suspicious, and often angry about an interaction she had with male TPD officers or male Tucson Fire Department (“TFD”) personnel. Id., Exh. “1” at ¶ 43. Plaintiff asserts that while she was on duty, Lt. Greene would call her a cunt, whore, or other variations thereof, and accuse Plaintiff of wanting to “whore around” with male officers and TFD personnel. Id., Exh. “1” at ¶ 46. Lt.Greene would call Plaintiff names via text message, in person, and by phone. Id., Exh. “1” at ¶ 48. Plaintiff further asserts that this vulgar and sexually accusing language while she was on duty was humiliating, often made her feel physically ill, and interfered with her ability to perform her patrol duties. Id.

         Plaintiff recounts one occasion on which Lt. Greene called her while she was on duty and said that he had driven past her in her patrol car and could see that she had “slapped on a shit ton of makeup” and that she was “all done up for the guys.” Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 49. When Plaintiff told Lt. Greene that she was not wearing any make up, he demanded that she prove it by sending him a picture of her face. Id. Plaintiff felt like Lt. Greene was following her during her patrol shift, and was scared and physically intimidated. Id. Plaintiff further asserts that Lt. Greene would call or text message her, demanding to know where she was and what she was doing in order to ensure that she was not around male officers. Id., Exh. “1” at ¶ 50. Lt. Greene would ask Plaintiff to send pictures of her locations to prove her whereabouts. Id.

         Plaintiff believes that Lt. Greene was regularly monitoring her patrol activities, because he would rather ask her things that he could only know if he were monitoring her on-duty activities. Pl.'s SSOF (Doc. 60), Exh. “1” at ¶ 52. Plaintiff further states that from 2009 through 2012, if she did not affirmatively keep Lt. Greene informed of her location and actions, he would regularly get angry and accuse her of flirting with male officers, “whoring around, ” or having “fuck buddies.” Id., Exh. “1” at ¶ 53. Plaintiff provides the following examples of Lt. Greene's treatment of her while she was on duty:

a) In later 2009, Plaintiff discovered an elderly man with memory problems seemingly lost in a park, and helped have him returned to his family. TPD issued a department-wide commendation congratulating her on her actions. In response, Lt. Greene called Plaintiff, belittling her, referring to her as a “fucking attention grabbing whore” and using other profanity and vulgarities;
b) In approximately May 2010, Lt. Greene called Plaintiff immediately after she had been dispatched to respond to a nearby car accident scene where there were male TFD personnel on scene, and said, “you fucking cock juggling whore, you jumped all over that call, ” insinuating that Plaintiff had responded to the call only to flirt with TFD personnel;
c) In approximately October 2012, Plaintiff apprehended an armed robbery suspect and was then assigned to transport the arrest suspect to the main downtown police station. Lt. Greene again accused her of being a “fucking attention seeking whore” and of having wanted to take the suspect downtown because she wanted to “go shake [her] ass” in front of male officers and command staff at the main station; .
d) Regarding performing pat downs on male suspects for weapons, Lt. Greene told Plaintiff that he knew “how [she] ...

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