MCAD dismisses Tisbury police officers’ discrimination complaints

The Massachusetts Commission Against Discrimination (MCAD) on June 28 dismissed discrimination complaints that police officers Michael Gately and Scott Ogden and former police sergeant Robert Fiske filed last year against the town of Tisbury. MCAD found a lack of probable cause, according to notices MCAD furnished last week in response to a request from The Times.

The three police officers alleged that the Tisbury Police Department (TPD) discriminated against them in retaliation for their involvement in another officer’s April 2009 MCAD sexual harassment complaint. The officer, who was not named in the MCAD narratives but referred to by the initials “KK,” was Kelly Kershaw. Her MCAD complaint included allegations of sexual discrimination, harassment, and retaliation by the town of Tisbury and the TPD.

Mr. Fiske, Mr. Gately, and Mr. Ogden alleged that the TPD retaliated against them for supporting or aiding Ms. Kershaw. As examples, they said they were subject to more scrutiny than other police officers and hampered in their advancement in the department.

In a decision issued in September 2011, MCAD found probable cause for discrimination based on sexual harassment, but did not support all of Ms. Kershaw’s allegations. She is currently suing the town and the department in Dukes County Superior Court for employment discrimination. Ms. Kershaw was fired by the selectmen on June 10, following an internal investigation into violations of police department.

“Following KK’s complaint, I was subjected to differential treatment,” Mr. Fiske said in his MCAD complaint. “My work was suddenly scrutinized more than my coworkers’, and my ability to be a supervisor was called into question.”

Officer Gately has served in the department since 1987 and was formerly the union shop steward. He alleged he was passed over for promotion to acting police chief in May 2009, and for another promotion to acting sergeant in December 2011.

Officer Gately said he was subjected to a hostile work environment based on his age. “I am constantly being called ‘old man’ by superior officers,” he said in his complaint. “These officers are also frequently asking me when I am going to retire and what I will do once I retire.”

“Even if the statements were taken as true, they fail to rise to the level of severe or pervasive,” MCAD responded.

Officer Ogden, a member of the TPD since 2002, filed two MCAD complaints alleging retaliation in January and November 2012. In both, he alleged that he received suspensions and other discipline in retaliation for supporting Ms. Kershaw. Officer Ogden also claimed that an officer less senior to him was promoted to acting sergeant, and that he subsequently received a low performance evaluation in January 2012.

“I believe the Respondent [Town of Tisbury – TPD] is trying to push me out,” Officer Ogden said in his complaint. “On November 29, 2011, the Chief informed another officer that there will be job openings in the next three years and named me as an officer who will be gone.”

The three officers’ MCAD complaints also alleged that their support of Ms. Kershaw was a factor in the discipline the department handed out in connection with each officer’s response on July 23, 2011, when a teenage babysitter, left alone in a house, was raped by a violent man who was the object of a police search.

Following an internal investigation and review of his actions, on November 2, 2011 the Tisbury selectmen fired Sergeant Fiske, the officer in charge that night. Sergeant Fiske, a 16-year veteran of the TPD, appealed the town’s decision. On October 12, 2012, arbitrator Richard Boulanger ruled that the town had just cause to terminate Mr. Fiske based on his “failure to implement departmental policies.”

Chief Hanavan suspended Officer Ogden without pay for five days.

Officer Gately received a written warning for failing to secure or photograph the crime scene. Following an appeal, the board of selectmen rescinded the warning.

MCAD said that the town had provided the three police officers with copies of its domestic violence and sexual assault policies, which were in place at the time of the incident, that spelled out how they should respond in such situations. MCAD said the three police officers failed to show that the town held “retaliatory animus” towards them.