Wednesday, November 15, 1995
Attorneys for Welsh Want Harassment Examined: They hope to persuade
judge to look at her entire history of claims against the San Francisco
By Sarah Lavender Smith
Daily Journal Staff Writer
Attorneys for former San Francisco police officer Joanne Welsh
will try to reinvigorate their case in federal court today by persuading
the judge to look at the entire history of her sexual harassment
claims against Police Chief Anthony Ribera, despite an earlier ruling
by the court that narrowed the suit.
The pretrial hearing before U.S. District Judge D. Lowell Jensen
in Oakland will determine the scope of the soap opera-like case
against Ribera and the city of San Francisco, which is set for trial
Nov. 27. Attorneys on both sides disagree strongly about which issues
should go before the court.
The city, which has moved for summary judgment and filed 32 motions
to limit evidence at trial, maintains that the only relevant matters
stem from events during a 14-week period in 1992 and 1993.
Welsh has accused Ribera of harassing her during two separate periods:
from September 1989 to January 1990, and from November 1992 to January
In late September, Jensen dismissed Welsh's claims relating to
the earlier period because they are time-barred by the statute of
limitations. The court left open the question of whether evidence
from that period could be admitted at trial.
The earlier period is important to Welsh's case because her allegations
from then; including forced kisses, an improper gift and suggestions
by Ribera that they have an affair; help prove the later events
and are more forceful and physical than allegations from the later
period, when Welsh claims Ribera made improper sexual comments to
her. Ribera has denied all of the charges.
In papers filed with the court, the plaintiffs attorneys reach
back to 1989 to argue that Welsh's claims for sex discrimination,
unlawful retaliation and defamation should proceed to trial. Using
the continuing violation doctrine, which allows time-barred claims
to be admitted if it can be shown they are part of a pattern of
conduct, Welsh argues the court must look at the entire period in
analyzing her claims of sexual harassment and a hostile work environment.
"Joanne's perspective from 1992 cannot be viewed in a vacuum.
She'd been through this before," said Roderick P. Bushnell
of Bushnell & Caplan LLP Welsh also is represented by
attorney Gerald Schwartzbach.
The city, by contrast, barely mentions the earlier period in its
brief, except to remind the court that those claims were summarily
adjudicated. The motion for summary judgment rises or falls only
on what allegedly happened from 1992 to 1993, Deputy City Attorney
Joanne Hoeper said in an interview. Whether the evidence from the
earlier period can be admitted at trial is a separate issue, to
be dealt with after the question of summary judgment, she said.
Hoeper said the plaintiff's tactic is "to throw as much whatever
at the wall and see how much will stick" and "to shove
as much stuff back into the case and obscure the record as much
The city boils Welsh's claims of sex harassment and a hostile work
environment down to six incidents and argues that only two of those
constitute sexual harassment: when Ribera allegedly told Welsh his
driver received oral sex in his car and said that as chief he "should
be getting some of that action"; and when Ribera allegedly
told Welsh "kiss me you owe me" after he prevented three
female cadets from being expelled from the police academy.
Judge Jensen also faces a wave of evidentiary motions by the city
to exclude any testimony or evidence that could be used by the plaintiffs
to suggest a cover-up on the part of the Police Department and the
Jensen dismissed Welsh's cause of action alleging a conspiracy between
Ribera and the city in his September ruling. The plaintiffs attorneys
still plan to challenge the adequacy of the investigation by the
Police Commission into Welsh's charges and its decision in March
1993 not to go forward with charges against Ribera. They believe
the commission was influenced by Mayor Frank Jordan, whom they allege
was trying to avoid the loss of his fourth police chief in less
than two years.
Motions filed by the plaintiff seek to exclude evidence about Welsh's
sexual history, her financial information, and about two polygraph
exams she took and failed in February 1993. The city hopes to use
that information in part to show her emotional distress from that
period was caused not by alleged harassment, but by the results
of her failed lie detector exam, which ran as front-page news in
the San Francisco Examiner.
The two sides also dispute whether Welsh, who resigned from the
department in January, was forced out or voluntarily resigned. At
trial, Welsh must prove her working conditions were so intolerable
that a reasonable person would have been compelled to resign.
The city highlights the fact that Welsh waited almost two years
to quit after making her allegations public in February 1993, and
that she had no real complaints about her subsequent post at the
Mission Station. Welsh's attorneys, however, claim she was subjected
to a high degree of retaliation after she made her allegations public.
"She was retaliated against and frozen out," Bushnell
said, by having her gun taken away, by temporarily being transferred
to the department's record room; viewed as a post for "problem
employees"; and by "being shunned on a daily basis by
co-workers at the Hall of Justice.
To the city, however, the case is about something wholly different
from sexual misconduct and retaliation.
This is a case of political revenge," Hoeper said, that arose
after Welsh felt her job in the public affairs office was threatened.
Welsh and her fiancé, former Supervisor Bill Maher, supported
Mayor Jordan's appointment of Ribera to the chief's post in 1992,
but later became upset with Chief Ribera when he appointed another
officer, Carl Tennenbaum, to work in her area of responsibility
in the public affairs office.
As the work environment between Welsh and Tennenbaum deteriorated,
Maher attempted to intervene on Welsh's behalf, culminating in an
argument between Maher and Ribera in which Maher told Ribera they
were going to go to war over this." The day after their argument
in February 1993, Welsh and Maher drove to the San Francisco Examiner
to go public with their allegations.
Sexual harassment is simply the tool these two used to pursue their
vendetta," Hoeper said.
To Bushnell, the case is equally cut-and-dried: The truth is she
was sexually harassed; she underwent adverse employment actions;
she complained about it; then they retaliated against her and made
her life hell."