Discrimination case by former Kansas City police recruit draws national attention

The Kansas City StarDecember 27, 2012 

— A sex discrimination and harassment lawsuit filed by a former Kansas City police recruit has drawn the concern of law enforcement officials in more than a dozen states.

The lawsuit, filed in U.S. District Court two years ago by Crystal Henley, alleged that the incidents occurred when she was going through training at the police academy. The suit names the Kansas City Board of Police Commissioners, former Police Chief James Corwin and several officers as defendants.

Among Henley’s allegations: A trainer physically assaulted her during exercises to the extent that she had to seek medical attention; trainers made comments about her appearance, with one saying that it was easier for her to do pushups than men because of her large breasts; she was treated more harshly than the male recruits; and she was told that she was better suited to be “some rich Johnson County man’s wife” than a police officer.

The reason so many states are worried: The case could open the door wider to similar lawsuits.

The district court had dismissed the lawsuit on the grounds that Henley had failed to exhaust other remedies before filing the case. Employee discrimination cases usually are handled under the Civil Rights Act of 1964, and in order to pursue such a case, a person is required to first file a complaint with the Equal Employment Opportunity Commission.

But in July, the Eighth U.S. Circuit Court of Appeals revived Henley’s lawsuit, ruling that she had alleged violations of her right to equal protection under the Constitution and not just her civil rights. Henley’s case was sent back to the district court to consider the question of whether the defendants violated her constitutional rights.

The defendants aren’t waiting for that decision, though — they’re appealing to the U.S. Supreme Court. And in November, 16 attorneys general filed a brief arguing that the appeals court judgment reviving the lawsuit should be reversed.

The reason it’s a big issue, says an employment law expert, is because the ruling by the appeals court opens new doors to gender-based discrimination claims for public employees.

Employees have 300 days to file an EEOC case, but much longer to sue on the basis of constitutional claims, said Patrick Smith, an attorney in Des Moines, Iowa.

“Potential claims once considered stale because more than 300 days had passed may have new life because of longer limitations periods for constitutional claims,” Smith said.

The defendants, some through their attorneys, all declined to comment on the lawsuit.

“We do not make comments on active cases,” said Kansas City Police spokesman Steve Young.

Virginia Murray, the Police Department’s general counsel, echoed Young’s statement, as did Nanci Gonder, spokeswoman for Missouri Attorney General Chris Koster, whose office is representing the police board on appeal.

The Eighth Circuit decision, they said, would allow state and local government employees to circumvent the Civil Rights process.

“If the Eighth Circuit is right, 20 million state and local government employees and those who seek such employment can entirely bypass Title VII procedures,” they argued.

The attorney general of Michigan filed a brief supporting the police board’s arguments, and attorneys general in 15 other states including Kansas signed on as well.

The states that filed the brief “would like the Supreme Court to clarify that the Eighth Circuit’s conclusion is wrong,” Michigan Solicitor General John J. Bursch said in an email to The Star.

According to Henley’s lawsuit, she entered the Kansas City Police Academy in May 2005. Soon after the training began, the lawsuit alleged, Officer Michael Throckmorton made Henley conduct a “tactical recovery” exercise in a way that none of the male recruits were required to perform. Henley suffered a torn quad muscle and leg convulsions as a result, the lawsuit said.

Throckmorton and other police officers named as defendants have denied all allegations.

In June 2005, the lawsuit claimed, Officer Dwight Parker talked to Henley and another female recruit about the size of their breasts, saying it would be difficult for Henley to be taken seriously as a police officer because her button-down shirt would pucker and expose her bra, causing a distraction.

Later that month, the lawsuit said, Parker told Henley he had taken a bet to see how fast they could get rid of her and said he would have to try harder to make sure she didn’t graduate.

In September 2005, the lawsuit alleged, Throckmorton told Henley to close her eyes during a training session, then administered a brachial hit with so much force that it dislocated her shoulder.

The following month, Throckmorton used a new can of pepper spray on Henley’s face during training, the lawsuit alleged, which damaged her right eye.

Immediately after the incident, the lawsuit said, Henley went to the women’s locker room to shower. As she exited the shower, Sgt. Bill Brown entered and saw her and another cadet naked. The lawsuit said Brown left the door open and allowed other male officers to see them, then stared at her instead of closing the door.

Also in October 2005, the lawsuit said, Henley was participating in an exercise on how to apply a choke hold on an attacker. A male officer at the academy “attacked” her and she applied the hold as directed. After releasing the hold, the lawsuit alleged, the male officer attacked her from behind and physically assaulted her. The lawsuit said that it took four other officers to pull him off her.

On Nov. 8, 2005, the lawsuit said, Parker and Brown gave Henley a memo stating why they didn’t believe she should graduate from the academy. Henley said she was forced to quit, just a week before graduating.

She filed the lawsuit in October 2010, seeking compensatory and punitive damages.

In their response to the lawsuit, the defendants denied all of the allegations. They said that a “brachial stun” was part of the training but denied that Henley was injured by it. They also acknowledged that Brown entered the women’s shower after the pepper spray incident but said it was because he’d received a report that another cadet had a medical issue. And they acknowledged giving Henley a memo in November 2005 but said the purpose was “to help her succeed with the training.”

Henley, who no longer lives in Missouri, told The Star that she had always wanted to go into law enforcement because one of her childhood friends was murdered.

Rebecca Randles, a Kansas City lawyer who is representing Henley, said Henley waited several years to file the lawsuit because “she was crushed by what happened to her, and tried for a year to just put it behind her.”

“Then she contacted a number of attorneys who told her she needed to go through the EEOC. She didn’t know about the deadline and when she found out, she didn’t think there was anything else that she could do.”

To reach Judy L. Thomas, send email to jthomas@kcstar.com.

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