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E’town, mayor respond to suit

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Request made to dismiss claims against Willmoth in individual capacity

By Marty Finley

By MARTY FINLEY mfinley@thenewsenterprise.com

ELIZABETHTOWN — The city of Elizabethtown and Mayor David Willmoth on Monday asked the U.S. District Court in Louisville to dismiss claims against the mayor in an individual capacity in a sexual harassment and discrimination suit filed by a former city employee.

The motion was in response to a suit filed by former Elizabethtown Public Works employee Cynthia L. Rogers. Rogers claimed in a lawsuit filed on Nov. 26 that former Public Works Superintendent Bill Owen sexually harassed her from 2003 to 2004 and sexually discriminated against her from 2003 to 2007. In addition to Owen, Rogers filed suit against Willmoth, both in an official and individual capacity, and the city of Elizabethtown.

“Defendant Willmoth, as a ‘final policymaker’ for the city of Elizabethtown and acting under ‘color of state law,’ deliberately and consciously engaged in adverse actions and retaliation against the Plaintiff causing the Plaintiff to suffer injury that would likely chill a person of ordinary firmness from continuing to report other acts of sexual harassment or retaliation,” the suit claims. It claimed the mayor’s actions violated Rogers’ constitutional rights to freedom of speech.

A memorandum of law filed Monday by the City of Elizabethtown and Willmoth supporting the motion for dismissal argues that Rogers’ claims only address Willmoth’s actions in an official capacity as the city’s mayor. “Vigorously” contesting the facts in the claims brought by Rogers, an “at-will” city employee for 17 years, the response claimed she was  terminated for “excessive absenteeism,” which included using 900.25 hours of leave time between 2005 and 2007, frequently being late and failing to appear without telling a supervisor.

The response filed Monday also claimed the city had received a complaint that Rogers, wearing a city of Elizabethtown shirt, was intoxicated in a local restaurant at lunchtime and was warned about the incident and absenteeism.

“The Plaintiff specifically alleges only that this Defendant acted in his office or position as Mayor of Elizabethtown. Plaintiff fails to allege that Mayor Willmoth did anything improper or tortuous independent of his position and duties with the City. The allegations against him in his Individual Capacity, therefore, are legally deficient and must be dismissed,” according to the city of Elizabethtown and Willmoth’s memorandum of law in support of the motion. The memorandum states there are no allegations of sexual activity involving the mayor or that he sexually harassed or discriminated against Rogers.

Rogers’ suit claims she met with Willmoth on Nov. 27, 2007 to discuss the matter, when she was promptly terminated due to “absenteeism for use of personal days,” reiterated in the City of Elizabethtown’s and Willmoth’s memorandum of law.

“Her absences created a hardship on the other Public Works employees who would have to step in and fulfill her duties, creating added stress on other employees and hampering the efficiency and morale of the Public Works Department,” according to the city of Elizabethtown and Willmoth’s memorandum of law. 

It also said, “The city gave Plaintiff opportunities to correct her attendance problems and she failed to do so. Plaintiff violated the city’s sick leave policy, attendance policy, and the city’s Code of Ethics.”

Rogers’ suit claims that “Willmoth and other management and supervisory personnel of the city of Elizabethtown either knew or should have known of the sexual harassment perpetrated upon the Plaintiff by Defendant Owen.”

However, the memorandum claims Willmoth had no knowledge of the harassment claimed by Rogers in her lawsuit.

“His decision to terminate her was made with no knowledge of any alleged sexual harassment or discrimination or alleged violation of any civil rights,” the memorandum of law claims.

City Attorney D. Dee Shaw declined to comment.

Amanda Birdwhistell Ward, Rogers’ attorney, also declined to comment.

Rogers is requesting judgment against the city, Willmoth and Owen for monetary damages for the violation of constitutional rights, as well as payment for past and future lost wages and benefits, past and future medical expenses, mental and emotional distress, personal indignity and humiliation.

The city of Elizabethtown and Willmoth’s memorandum of law states that “plaintiff can still pursue a full and complete recovery against the remaining parties she has sued.”

Marty Finley can be reached at (270) 505-1762.