Las Vegas POA

‘Failure To Train’ Claim Must Show Deliberate Indifference

Written on 09/29/2020
Will Aitchison

Jo Anne Pepitone is a police sergeant in the Lower Merion, Pennsylvania Police Department. Pepitone sued the Department, alleging that “there have been numerous sexually charged rumors circulating throughout the police department that have contributed to creating a sexually hostile and gender discriminatory hostile work environment,” including rumors that Pepitone had “sexual relationships with her supervisors and members of neighboring police departments” and “was promoted because of a sexual relationship with her supervisor.”

Pepitone claimed that when she spoke with Department employees about the rumors, she was told “that is how this place works.” She contended that the Department launched a discriminatory investigation into whether she was having an inappropriate relationship with another officer, and thereafter transferred her to a “less senior and less prestigious” platoon.

Among other claims in Pepitone’s lawsuit was that the Department should be liable to her for failure to train its employees in sexual harassment. In particular, Pepitone argued that “the sexually harassing and gender demeaning conduct against females, including her, has been rampant throughout the police department for years, and the police department’s command staff has known about the conduct, failed to remedy it, turned a blind eye and allowed these customs and practices of the police department to be so common that they have the force of law.”

A federal trial court dismissed the “failure to train” claim. The Court reasoned that “we note that failure to train claims are difficult to establish, as proving that a municipality itself actually caused a constitutional violation by failing to train the offending employee presents difficult problems of proof, and we must adhere to a stringent standard of fault. In order to establish a failure to train claim, the employee must show that the locality’s failure to train its employees meets the stringent standard of deliberate indifference to the employee’s rights.

“In order to establish deliberate indifference, the employee generally must show that the municipality had actual or constructive notice of a particular omission in its training that causes its employees to inflict cognizable harm. If the City had notice, then the City has effectively deliberately chosen a training program that will cause violations of constitutional rights. Generally, to establish notice, the employee must show a pattern of similar constitutional violations by untrained employees. In rare circumstances, a single violation can suffice.

“Pepitone points to two prior lawsuits ostensibly brought against the Department. Pepitone began her instant lawsuit in 2019, over 20 years after the complaint in the first case was filed and approximately 17 years after the second complaint was filed. Pepitone does not appear to explicitly argue that these prior lawsuits put the Department on notice that the training in place at that time was deficient in a way that could establish deliberate indifference under a failure to train theory. However, even assuming that those lawsuits could have provided notice that the Department’s training program was deficient 17 years ago, Pepitone’s complaint contains no indication that conduct or deficiencies in training 17 years ago could, without more, put the Department on notice of deficiencies in its current training program.

“Further, Pepitone’s own experiences are insufficient alone to establish a pattern of conduct because it appears from Pepitone’s complaint that the harassment against her stopped after she emailed her complaint to the Department. Thus, Pepitone has not sufficiently alleged a pattern of similar conduct or that harassment occurred after the Department had notice of the alleged harassment. Because Pepitone has not shown the functional equivalent of a decision by the City itself to violate the Constitution, she does not indicate the deliberate indifference required for failure to train claims.”

Pepitone v. Township of Lower Merion, 2020 WL 4604481 (E.D. Pa. 2020).

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