Gratuitous Comments Not Enough For Pregnancy Discrimination Claim

Patricia Rosati has spent most of her career in the 8th Police District in the City of Philadelphia since becoming a police officer in 1996. Sgt. Michael Colello was the administrative sergeant in the 8th District from early 2008 through mid-2012.

As Rosati recited the facts, from 2005 through 2014, Rosati took multiple leaves of absence under the Family And Medical Leave Act and frequently worked on restricted duty largely as the result of pregnancy or pregnancy-related conditions. In February of 2012, Rosati asked Colello for permission to take a few hours off to attend a doctor’s appointment, and Colello responded by asking if she “was going to get fixed.” That same month, when Rosati told Colello that she was pregnant, he asked if she “was keeping the baby.” A lieutenant also told Rosati that Colello “made comments on a weekly basis” about her shifts and childcare needs.

On February 10, 2012, Rosati was placed on restricted duty because of pregnancy-related restrictions. Three months later, on May 2, 2012, Rosati walked into the 8th District’s kitchen to announce that her daughter had received an award for student of the month. Colello and Officer Bob Sweeney were both in the room, and Colello said, “Let me guess. You need a day off.” He called Rosati “a fucking scammer,” and made nepotism-related accusations. Officer Sweeney left the room. After the door was shut, Rosati asked Colello if he had a problem with her. Colello said that once their current female lieutenant was replaced by a male lieutenant Rosati was “going to be fucked, because she was going to have four kids running around and was going to be pushing a car.” According to Rosati, “pushing a car” means an assignment to a line squad position rather than an administrative one.

Rosati eventually filed a discrimination claim under both the Pregnancy Discrimination Act and Pennsylvania’s state discrimination law, alleging that Colello’s comments created a hostile work environment. A federal court ordered that the lawsuit be dismissed.

The Court held that “because the events and incidents in this case do not rise to the level of severe and pervasive discrimination, but rather are in the nature of isolated incidents, Rosati cannot meet her burden of showing a prima facie case of a hostile work environment. Three incidents over a four-month period is not a continuous period of harassment, nor was any incident so serious as to create a hostile work environment on its own.

“This conduct was infrequent – Colello and Rosati allegedly had three such interactions over a fourth-month period. The conduct was not severe – Colello’s comments, though offensive, were isolated. There are no allegations that Colello’s conduct was physically threatening or humiliating. Rather, his conduct was precisely in the category of mere offensive utterances. Nor are there allegations that Colello’s conduct unreasonably interfered with Rosati’s work performance.

“Even viewing the evidence in the light most favorable to Rosati, she has failed to make a prima facie showing of a hostile work environment.”

Rosati v. Colello, 2015 WL 1475505 (E.D. Pa. 2015).