Tucson Police Captain Diana Duffy is suing the City of Tucson for sex discrimination, disparate treatment, a hostile work environment, and retaliation.
Captain Duffy became the subject of discrimination after her boyfriend, a fellow officer, shared “racy” photos and videos he had of her with his fellow officers. He later admitted that his actions were “juvenile.”
TPD higher ups took action against Duffy after receiving anonymous letters about the photos. The first letter, sent around August 16, 2012, was dropped off at TPD headquarters, “alleging, generally, that Plaintiff (Duffy) engaged in misconduct of a sexual nature on TPD property. The sexual conduct was videotaped, according to the anonymous letters, and sent to TPD employees,” according to the court documents. Then-TPD Chief Roberto Villasenor authorized an internal investigation.
“On August 23, 2012, a second anonymous letter was sent to TPD regarding Plaintiff, this time to Assistant City Attorney Julianne Hughes,” according to the lawsuit. “The August 23, 2012, anonymous letter indicated that the “chief of police and internal affairs received our complaint” and that “Now we are confident that he will do everything to keep from holding the people involved in this sex scandal from being exposed. NOT going to happen.” The second anonymous letter threatened to expose some of Chief Villasenor’s previous alleged indiscretions if he did not hold Plaintiff (and others) accountable.”
Duffy’s lawsuit notes that TPD later released the results of an investigation into the matter “to all local media outlets including, but not limited to: the Arizona Daily Star, KGUN 9, KVOA, and Tucson News Now. As a result of TPD’s actions, this case went ‘viral’ and made national news.”
Duffy’s lawsuit reads in part:
Plaintiff has been an employee of TPD since 2000.
Section L of Plaintiff’s Annual Performance Review for the time period December 7, 2009, to December 6, 2010, ‘Career Path Guidance and Goal Setting’ states, in part, “Diana, you are a talented police professional who will certainly excel in your chosen profession….you are the future of this agency.”
At the end of her probationary period as a Lieutenant, Plaintiff received an Annual Performance Evaluation narrative commending her performance as first year Lieutenant assigned to the Operations Division Downtown. In part, the evaluation states that “Lieutenant Lopez has revealed herself to be a strong and confident leader.”
On or about August 16, 2012, someone dropped off an anonymous letter at TPD headquarters, 270 South Stone Avenue, Tucson, Arizona, 85701, alleging, generally, that Plaintiff engaged in misconduct of a sexual nature on TPD property. The sexual conduct was videotaped, according to the anonymous letters, and sent to TPD employees.
On or about August 16, 2012, then-TPD Chief Roberto Villasenor, by Memorandum to Lt. Bob Wilson, TPD Office of Internal Affairs, authorized an internal investigation (Internal Affairs file no.: 12-0349) into the activity alleged in the anonymous letter delivered to TPD.
On August 17, 2012, TPD gave Plaintiff written notice of the internal investigation. The letter was also sent for fingerprint analysis. Upon information and belief, the origin and/or author(s) of the letter was never determined.
In TPD, internal affairs investigations are conducted by the Office of Professional Standards. TPD assigned Sgt. Brian Peasely as the investigator in file no.: 12-0349.
On or about August 17, 2012, Sgt. Peasely briefed City Attorney Mike Rankin regarding the anonymous letters. Sgt. Peasley advised City Attorney Rankin that he believed that Plaintiff was the victim of sexual harassment and the incident should be handled as an “EEOC investigation.” Internal affairs handles EEOC investigations far more discretely than other types of internal affairs investigations. For example, if the reports of investigation in these types of matters are released to the public, they are heavily redacted, and internal affairs maintains these files under special lock and key. Nevertheless, TPD’s investigation into the allegations against Plaintiff were treated differently and not considered an EEOC investigation.
During Sgt. Peasley’s investigation, TPD interviewed approximately fifteen officers regarding the allegations contained in the anonymous letter.
During her internal affairs interview on August 17, 2012, Plaintiff said that she filmed cell phone videos in her home and sent them to her ex-boyfriend, TPD Officer Charles Foley. She also stated that she took a cell phone video of herself and Officer Melissa Ayun kissing at the end of one of their shifts in a TPD station locker room. Plaintiff also indicated that she took one photo in her TPD uniform shirt where her breast was partially exposed.
During her interview, TPD ordered Plaintiff to turn over any media containing sexually explicit materials; however, because she had replaced her cell phone, she no longer had access to any photos or videos.
After her internal affairs interview ended, Sgt. Peasley told Plaintiff that the case was most likely going to be closed out shortly. She was also allowed to perform her duties as Force Commander, which meant that she was the highest-ranking decision-maker on behalf of TPD for that particular shift.
On August 23, 2012, a second anonymous letter was sent to TPD regarding Plaintiff, this time to Assistant City Attorney Julianne Hughes.
The August 23, 2012, anonymous letter indicating that the “chief of police and internal affairs received our complaint” and that “Now were are confident that he will do everything to keep from holding the people involved in this sex scandal from being exposed. NOT going to happen.” The second anonymous letter threatened to expose some of Chief Villasenor’s previous alleged indiscretions if he did not hold Plaintiff (and others) accountable.
Upon information and belief, TPD did not close its investigation after receiving the August 23, 2012, anonymous letter.
Upon information and belief, the existence of TPD’s internal affairs investigation into Plaintiff’s conduct was leaked to the media. As a result, TPD received a public records request from KVOA, News 4 Tucson.
During her internal affairs interview, Officer Ayun said that she had general knowledge that Plaintiff had allegedly made some videos and sent them to Officer Foley, but had never seen them. Officer Ayun also agreed that a video where she kissed Plaintiff was taken in a TPD locker room. She stated that despite the difference in their ranks, she was under no pressure to create this video.
During his internal affairs interview, Officer Charles Foley admitted that Plaintiff sent him sexually-explicit, private videos and that he played them for five other TPD officers including officers Judd Whitfield and Pete Buchanan. Officer Foley also admitted that showing the videos to other officers was “juvenile.” Officer Foley said there was a video of Plaintiff, Sgt. Alisa Cunningham, and Officer Ayun kissing each other while fully clothed. He said that he was no longer in possession of any videos.
During his internal affairs interview, Officer Whitfield admitted that he received a video or photo via text message from Officer Foley but that he had deleted it. Officer Whitfield also admitted to that he looked at photos and videos of Plaintiff on Officer Foley’s phone.
During his internal affairs interview, Officer Buchanan said that sexually-explicit videos involving Plaintiff had been on his phone, received from another TPD employee, but that he had deleted them. Before deleting them, he sent the videos to Capt. Stamatopoulos and Sgt. Murray. His recollection was that he saw a video of Plaintiff, Officer Ayun and Sgt. Cunningham naked from the waist up, kissing and engaged in some mouth-to-breast contact.
During his internal affairs interview, Sgt. Eric Kazmierczak said that Officer Foley played sexual videos of Plaintiff on the shooting range. Officer Foley also shared a still photograph where Plaintiff’s uniform top was unbuttoned, but there was no nudity.
Sgt. Kazmierczak was the first line supervisor for Officers Foley, Buchanan and Whitfield. Sgt. Kazmierczak never reported or addressed the fact that his subordinates were viewing and sharing sexually-explicit videos of Plaintiff with other TPD employees.
Despite his failure to report, Sgt. Kazmierczak was subsequently promoted to Lieutenant and, most recently, to the rank of Assistant Chief.
On August 22, 2012, internal affairs interviewed Capt. John Stamatopoulos. He said that Officer Buchanan showed a sexually-explicit video of Plaintiff to himself and Sgt. Jim Murray on a trip.
Capt. Stamatopoulos failed to report the fact that Officer Buchanan was viewing and sharing sexually-explicit videos of Plaintiff with other TPD employees. Capt. Stamatopoulos would eventually receive a written reprimand.
A written reprimand, under TPD’s Disciplinary Matrix, is one of the lowest forms of discipline a TPD employee can receive.
TPD internal affairs interviewed Lt. Paul Sayre on August 24, 2012. Lt. Sayre was aware of the videos, but had not seen them.
During his internal affairs interview on August 29, 2012, Officer Roger Wall stated that he was at the TPD armory one day and that several guys looking at something, joking, and saying “come see this.” Office Wall walked over and saw a video which had a close up of a female genital area. He knew that the video was of Plaintiff because that was part of the conversation that was occurring around the video.
On August 29, 2012, during his internal affairs interview, Officer Jason Southard said that a sexually-explicit video of Plaintiff was being passed around Trident Grill during a social event with Officers Buchanan, Wall, Whitfield, Foley, and Sgt. Kazmierczak.
During his August 29, 2012, internal affairs interview, Sgt. Jim Murray said he had seen sexually explicit videos of Plaintiff on Officer Buchanan’s phone with Capt. Stamatopoulos during an off-duty car ride.
On September 5, 2012, internal affairs interviewed Sgt. Cunningham. She admitted that she had kissed Plaintiff off duty and that it had been videotaped on a cell phone. She was also aware of the video of Plaintiff kissing Officer Ayun in a TPD locker room.
Among the findings of TPD’s internal affairs investigation was that none of the officers interviewed had filed an internal complaint about the sexually-explicit photos or videos.
Upon information and belief, none of the men that TPD was aware had seen the sexually-explicit photographs and/or videos discussed above were sanction by TPD for failure to report.
TPD General Standards of Expected Conduct 1330.7 states that “Members shall not engage in any conduct, whether on or off duty, which is unbecoming or detrimental to their duties, position or the Department…Members shall treat each other and all persons with whom they have contact with respect and courtesy.”
On September 11, 2012, Sgt. Peasely delivered his internal affairs investigation to Chief Villasenor.
On September 20, 2012, Communications Division Commander Tony Aeilts reported to Chief Villasenor and recommended that Plaintiff receive a Presumptive Sanction of a Type D Violation – Demotion – because “she created the potential for major adverse impact on the professional impact of the Department.”
On October 4, 2012 Plaintiff met with Assistant Chief (AC) Kathleen Robinson at Starbucks where AC Robinson told Plaintiff that she was being targeted as a female officer. AC Robinson cited examples of behavior by male officers that did not receive the same scrutiny. For example, AC Robinson said that a male Sergeant had showed a video of himself masturbating to a member of the public at a casino. That person, in turn, complained to TPD. As a result, TPD suspended the male Sergeant for 30 hours.
During their meeting, Plaintiff told AC Robinson that most of TPD employees interviewed were interviewed as ‘witness officers,’ which prohibited them (under TPD’s rules) from being disciplined. Plaintiff asked AC Robinson to have internal affairs re- interview those employees as ‘focus officers’ because they had committed misconduct. Upon information and belief, TPD never re-interviewed any of those officers as ‘focus officers.’
Shortly after their meeting, in a report dated October 18, 2012, AC Robinson agreed with Mr. Aeilts’s findings that Plaintiff should be demoted.
On October 31, 2012, Deputy Chief Sharon Allen reviewed the internal affairs file regarding Officer Charles Foley. TPD gave Officer Foley a Discipline Level 6 with a Presumptive Sanction of an 80-hour suspension.
Upon information and belief, a male Sergeant who had viewed the sexually-explicit photographs and/or videos, and who supervised three of the officers who had viewed the sexually-explicit photographs and videos, received a written reprimand.
On November 20, 2012, TPD served Plaintiff with her Seven Day Notice of Intent to Discipline and Notice of Discipline (Demotion).
On November 23, 2012, Plaintiff requested a Civil Service Commission (CSC) hearing.
On November 28, 2012, Plaintiff signed for her demotion.
After TPD demoted Plaintiff, it sent an all-TPD email announcing that Plaintiff had been reassigned as a Sergeant to Operations Division South. In her 11 years at TPD, upon information and belief, no other demotion had been announced in that way.
The CSC hearing on TPD’s demotion occurred on January 22, 2013.
At the CSC hearing, Chief Villasenor testified as to his beliefs regarding Plaintiff’s abilities, including his belief that he would promote her to be one of his next Captains.
After a full day of testimony and deliberation, the CSC found just cause for the demotion.
After CSC rendered its decision, TPD released the entire investigative file to all local media outlets including, but not limited to: the Arizona Daily Star, KGUN 9, KVOA, and Tucson News Now. As a result of TPD’s actions, this case went ‘viral’ and made national news.
After she was demoted, TPD placed Plaintiff on its night shift. Plaintiff applied for a Mayoral Detail Sergeant position which was open to any Sergeant not on probation. She placed number one on the list. Nevertheless, TPD passed her over for the promotion and chose the second person on the list, who was a male. Had she been selected for that assignment, she would have received a pay increase.
On April 11, 2013, Plaintiff filed a Special Action in Arizona Superior Court, case number C-20131989, challenging TPD’s demotion.
In or around October 2013, Plaintiff applied for a Field Training Sergeant position which carried with it a 5% assignment pay increase.
TPD did not select Plaintiff for the Field Training Sergeant position, citing her previous discipline as its reason for finding Plaintiff was not eligible for the position.
Nevertheless, at the time, upon information and belief, of the 22 Field Training Sergeants in their position, all of whom were male, 15 did not qualify for the position under the guidelines set forth in TPD’s General Orders.
On April 9, 2014, Judge Harrington heard oral argument on Plaintiff’s Special Action.
On May 9, 2014, Judge Harrington overturned the CSC’s decision, holding that Plaintiff did not receive fair notice that her conduct was sanctionable and that it was not reasonable to sanction Plaintiff’s conduct as “all” of her conduct was “private and personal.” Judge Harrington reversed the CSC for abuse of discretion and because its decision was arbitrary and capricious and without just cause. Judge Harrington then remanded the matter back to the CSC.
Despite the Order of the Arizona Superior Court, TPD refused to return Plaintiff to the rank of Lieutenant.
As a result, Plaintiff engaged in motions practice before the CSC to enforce Judge Harrington’s May 9, 2014, Order. TPD still did nothing.
On August 6, 2014, Plaintiff sent a letter to Attorney Julianne Hughes requesting that TPD immediately reinstate Plaintiff to her Lieutenant position with back pay. TPD did not do so.
On August 13, 2014, Plaintiff sent a letter to CSC counsel requesting that Plaintiff be immediately reinstated to the rank of Lieutenant with back pay. Neither the CSC nor TPD did so.
On August 18, 2014, Plaintiff sent CSC counsel another letter requesting that the CSC immediately reinstate Plaintiff to the rank of Lieutenant with back pay.
On August 20, 2014, after a meeting with CSC, Plaintiff was reinstated to the rank of Lieutenant. She would eventually receive a portion of her requested back pay.
On October 31, 2014, the Arizona Daily Star quoted then-TPD Deputy Chief Sharon Allen’s written recommendation for Officer Foley’s suspension: “Clearly this action would cause and has caused harm to Lieutenant Lopez’s reputation and discredits her as well.”
Plaintiff is aware of two TPD male employees who were demoted for sustained misconduct, but who never had their cases leaked to the media.
TPD hired a new Police Chief, Christopher Magnus, in or about January 2016.
On December 4, 2016, TPD promoted Plaintiff to the rank of Captain.
After being demoted by TPD, Plaintiff filed an action with the Civil Service Commission (CSC) to appeal TPD’s demotion. CSC upheld TPD’s demotion on January 23, 2013.
On April 11, 2013, Plaintiff filed a Special Action in Arizona Superior Court appealing the CSC’s decision. Judge Harrington reversed the CSC on May 9, 2014.
Prior to filing this action, Plaintiff timely filed a Charge of Discrimination with the Arizona Attorney General’s Office, Civil Rights Division.
On December 9, 2016, the Equal Employment Opportunity Commission, Phoenix District Office, determined that there was “reasonable cause to believe Respondent discriminated against Charging Party due to her sex, when it demoted her from a Lieutenant to a Sergeant, and retaliated against her for engaging in a protected activity by placing her on a permanent night shift and denying her a Sergeant position that would have resulted in an increase in pay.”
On or about July 21, 2017, the United States Department of Justice Civil Rights Division issued a Right to Sue letter.