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Daily Journal
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 police chief.

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 1993.

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 as possible."

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 city.
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."


     
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