City wants former Lincoln Police Officer’s case dismissed
LINCOLN, Neb. (KOLN) - An attorney for the City of Lincoln is calling on a judge to dismiss former Lincoln Police Public Information Officer Erin Spilker’s case alleging a hostile work environment, sex or gender discrimination, retaliation and constructive discharge.
Assistant City Attorney Tyler Spahn hinged his motion to dismiss on a technicality. He told Judge Kevin McManaman that because Spilker is suing under the Nebraska Fair Employment Practice Act, there’s a 300-day statute of limitations.
“They’re trying to start at March 2020 and go back 20 years,” Spahn said.
Kelly Brandon, the attorney representing Spilker, said the case can use what’s called the continuing violation doctrine, which would override the statute of limitations because all of the allegations are similar in frequency, nature and severity.
“I understand Erin has a tremendous amount of allegations that go through the entire time period of her employment,” Brandon said. “The reason they’re similar is because they all relate to her sex. Whether she was afforded breast pumping facilities, or harassed or assaulted, all of those things deal with her sex. It doesn’t have to be the same harasser.”
“It would fly in the face of the doctrine and how it’s been applied by the eighth circuit,” Spahn said. “They’re trying to apply it just simply on the conduct occurring at work, then the doctrine would have no effect. All of these allegations happened at work.”
The judge corrected Spahn, telling him Brandon said the allegations relate based on Spilker’s sex, not just happening at work.
Spahn responded that the case still did not qualify.
The initial complaint, filed in early 2022, alleges the City of Lincoln failed to act after several reports of sexual harassment and assault, including an incident in 2014 when a male officer sexually assaulted Spilker inside of her own home and a second incident in 2015 when a different officer sexually assaulted her at a Halloween party. The complaint also details incidents where Spilker received unwanted sexual advances at the hands of Lincoln Police employees and personnel with Lincoln Fire and Rescue. It says she was also discriminated against for being a mother and engaging in relationships with colleagues that males in similar situations didn’t face.
The complaint details multiple times these assaults, and more, were brought to the attention of the leadership of the Lincoln Police Department. This was provided as another reason why the case shouldn’t be dismissed because the lack of action meets the elements of a hostile work environment.
State law shows an employer is liable for creating a hostile work environment if the employer does not monitor the workplace, the employer failed to respond to complaints, the employer failed to provide a system for registering complaints or the employer discouraged complaints from being filed.
Brandon said the third factor is the strongest in this case.
“Bad acting here is not limited to officers committing sexual assault, harassment and discrimination, Brandon said. “Another bad actor is the city who has failed to prevent or remediate the sexual harassment Erin experienced during the course of her employment.”
The city also said that no charges could be based on the Brady Letter Spilker received in 2014 because that too is outside of the 300-day window. A Brady Letter is a letter adding police officers to a list of officers accused or found guilty of police misconduct, like being untruthful. Officers with a Brady Letter are required to disclose it upon testifying in court. Spilker’s lawsuit alleges her receiving a Brady Letter was retaliatory and held her back from career advancement.
Spahn said even though the complaint references actions taken in 2021, like then Interim Chief Brian Jackson’s denial to remove the Brady Letter, it doesn’t make an event outside of the statute of limitations current.
Brandon said Spilker would become physically sick because of having to testify about the Brady Letter, for fear of losing her job.
“I do believe the failure of Jackson to consider revoking the Brady Letter can be considered additional adverse action,” Brandon said.
Spahn also attacked allegations that Lincoln Police Chief Teresa Ewins treated Spilker bad enough to meet the requirements of the lawsuit.
“She alleges the current LPD Chief Ewins was abrupt and unpleasant,” Spahn said.
Brandon said Spahn was making light of the Chief’s conduct toward her client.
“Instead of meeting with those who made complaints, she dismantled the careers of women who came forward, as well as a male ally, Luke Bonkiewicz,” Brandon said. “That kind of environment contributed to Erin’s mental health which is alleged in the complaint as well.”
Brandon said it was Spilker’s mental health and a report from a psychologist that lead her to quitting the department.
Her brief in response to the complaint claims Spilker has provided enough evidence to support all four complaints and they are not time barred. She also said the city used similar reasoning to try and get the case of Melissa Ripley, a current Lincoln Police office suing the city dismissed but the judge, Jodi Nelson, did not side with the city.
Spahn continues to argue that too many of the allegations are out of required time periods. He also made clear that the city wasn’t admitting to any allegations.
The judge will take the decision under advisement in June following the defense filing additional paperwork and the city responding in the next few weeks.
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