The Legal Intelligencer by Shannon P. Duffy - April 26, 2010
PHILADELPHIA, PA - An ugly dispute between two women lawyers in the Philadelphia city solicitor's office is now being aired in a federal lawsuit in which one, the plaintiff, claims that her husband was having an affair with the other woman, who was her supervisor, and that the conflict ultimately resulted in the plaintiff's firing. Now a federal judge has tossed out some of the woman's claims, but ruled that she must be allowed to proceed on others, including a claim that her firing was in retaliation for her having sued the other woman for defamation, and a claim that the firing was racially motivated. In the suit, Darlene Davis-Heep claims that her ex-husband, Jeremy Heep, a partner at Pepper Hamilton, became romantically involved with Kathleen Tia Burke. Davis-Heep's suit, filed by attorney Brian Puricelli, alleges that City Solicitor Shelley R. Smith hired Burke in March 2008 and placed Burke in a supervisory position over Davis-Heep. At the time, the suit alleges, Smith knew that Davis-Heep was married to Jeremy Heep and that Burke "was having a physically romantic affair" with Heep. Davis-Heep claims that she was later forced to file a defamation suit against Burke because Burke began making false statements in the office, including the allegedly false statement that Burke had secured a protection-from-abuse order against Davis-Heep. The defamation suit settled, Davis-Heep claims, with a promise by Burke to "concede in writing and to Shelley Smith" that she, Burke, had "lied about Davis-Heep." But the dispute didn't end there, the suit alleges, because Puricelli demanded access to the documents in the defamation suit settlement. At the time, Puricelli had recently secured a $10 million verdict in a civil rights suit against the city, and Burke was handling the city's post-verdict negotiations. The $10 million verdict in McKenna v. City of Philadelphia, a race discrimination suit brought by three white police officers, was later severely slashed when a federal judge ruled that each of the three plaintiff's compensatory awards must be capped at $300,000. With backpay awards added, the total judgment now stands at about $1.1 million and the case is currently on appeal. Davis-Heep claims in the suit that Smith denied to Puricelli that she had any knowledge of the settlement, and that Smith soon after fired Davis-Heep on the grounds that she must have been Puricelli's source for discovering the existence of the defamation suit settlement. The suit alleges that the firing violated Davis-Heep's First Amendment right to petition since the firing was in retaliation for her exercising her right to sue Burke, and that race was also a factor. Davis-Heep is black and both Jeremy Heep and Burke are white.
Lawyers for the city moved to have the entire suit dismissed, arguing that Smith's decision to fire Davis-Heep was clearly justified by Davis-Heep's failure to keep her personal disputes with Burke from interfering with the work in the office, and because Smith had concluded that Davis-Heep had improperly supplied information to Puricelli in a suit against the city. "In light of plaintiff's disregard for Smith's direction to not allow her personal issues with Burke to spill over into the workplace and in light of plaintiffs decision to act in her own personal interest and in reckless disregard for the interests of the city law department, plaintiff was terminated on December 4, 2008," attorneys Danielle Banks and Michelle K. Carson of Stradley Ronon Stevens & Young wrote in the city's motion to dismiss. Now U.S. District Judge Robert F. Kelly has sided with the city, granting dismissal of several of Davis-Heep's claims, but ruled that two of the claims must be allowed to proceed. Kelly found a fatal flaw in one of Davis-Heep's First Amendment claims that focused on her complaints to Smith about Burke. "Here, plaintiff's report to the city supervisors consisted of statements allegedly made by Burke regarding plaintiff, in the context of a 'physically romantic affair' between Burke and Jeremy Heep," Kelly noted in a 24-page opinion in Davis-Heep v. City of Philadelphia. "It is apparent that such complaints consist of purely personal matters and cannot be deemed a matter of public concern. Accordingly, this claim is dismissed," Kelly wrote. But Kelly refused to dismiss Davis-Heep's other First Amendment claim in which she says her firing stemmed from retaliation for her lawsuit against Burke.
"It is well established that a public employee is protected under the First Amendment's Petition Clause against retaliation for having filed non-sham lawsuits, grievances, or other petitions with the courts or other government bodies," Kelly wrote. Defense lawyers argued that Davis-Heep cannot show a "causal relationship" between her alleged protected activity and the alleged retaliatory action. But Kelly found that, at such an early stage of the litigation, Davis-Heep must be allowed the opportunity to establish the connection through discovery. Although the city has not yet filed a formal answer to the suit, there were strong hints in court papers that many of the facts will be disputed. Attached to the city's motion to dismiss was the letter that Smith gave Davis-Heep on the day she was fired. In the letter, Smith noted that she had met with Davis-Heep in March 2008 to discuss Burke's hiring and noting that she warned Davis-Heep not to allow any unresolved problems with Burke to "spill over into the workplace." The letter went on to say that Davis-Heep "showed poor judgment" when she ignored that warning and delivered documents to Burke through Burke's secretary. Smith's letter also faulted Davis-Heep for providing information about Burke to Puricelli. In explaining her decision to fire Davis-Heep, Smith wrote that the "totality of these circumstances leads me to conclude that you have disregarded my direction to not allow your personal issues with [Burke] to spill over into the workplace and have, instead, chosen to act not only in your own personal interest but in reckless disregard of the interests of this department." Banks declined to be interviewed, saying the city has a strict policy of not commenting on pending litigation. Jeremy Heep also declined to be interviewed.