But the city maintains Burnett shouldn’t have that opportunity, because the anti-bias law in effect during the relevant time period didn’t authorize punitive damages.
In civil-rights cases, punitive damages are awarded to promote social justice, and because of their deterrent effect. They can be quite sizable, though they’re also subject to reduction on appeal.
Recently, Burnett’s attorneys filed a motion asking U.S. District Judge C. Darnell Jones 2d for permission to seek punitive damages from the city.
“Evidence has shown that punitive damages under the Philadelphia Fair Practices Ordinance are appropriate,” the motion states.
The motion cites several bias incidents allegedly experienced by Burnett, including being issued unfair performance evaluations, being banned from a public restroom and being prevented from working with children.
All of those bias incidents were perpetrated by Burnett’s supervisors, according to the motion.
“Any one of these actions, or series of actions, is sufficient to cause an average member of the community to exclaim, ‘Outrageous!’” the brief states.
But city attorneys note that a punitive-damages provision wasn’t included in the ordinance until June 2011, well after Burnett allegedly suffered workplace bias.
“The punitive-damages provision of the [ordinance] was added by legislative amendment and only became law in 2011, many years after the factual circumstances of [Burnett’s] case and several years after the filing of her lawsuit,” the city contends in its legal brief.
City attorneys also maintain the amendment can’t be applied retroactively to cover workplace bias prior to June 2011.
Before the amendment, litigants could seek “exemplary” damages from the city, but those damages were capped at $300 per violation.
The city doesn’t contest Burnett’s right to seek compensatory damages, though it denies any wrongdoing in the matter.
In a related matter, Burnett’s attorneys asked Jones to exclude trial testimony that’s based on hearsay, including a claim that Burnett refused to perform job duties until she consulted with her attorneys.
At press time, Jones hadn’t ruled on Burnett’s punitive-damages and hearsay-exclusion requests.
Burnett, 57, has worked as a library assistant for the city for 22 years.
She had gender-reassignment surgery in 2001, but her personnel records still refer to her as a male.
Burnett filed suit against the city in September 2009, after receiving three favorable rulings from the city’s Commission on Human Relations.
According to Burnett’s lawsuit, she had been transferred to eight different library branches, passed over for advancement and unfairly restricted in her interactions with patrons.
Slurs hurled at Burnett by some staffers included “freak,” “man in woman’s clothing” and “nigger,” according to the lawsuit.
On one occasion, when Burnett expressed wishes for a nice weekend to a coworker, the employee responded with, “Burn in hell,” according to the suit.
Additionally, Burnett maintains, some staffers went out of their way to avoid contact with her, and they avoided touching objects she might have touched.
Her lawsuit alleges constitutional violations of right to due process, equal protection under the law, freedom of expression and other rights.
She’s also suing under Title 7 of the Civil Rights Act of 1964 for alleged discrimination due to her gender.
Burnett also alleges that four of her coworkers intentionally inflicted emotional distress upon her, which is prohibited under state law.
If settlement discussions are unavailing, a jury trial is expected later this year.