Washington-Pope v. City of Phila., CIVIL ACTION No. 12-4300

Decision Date23 November 2015
Docket NumberCIVIL ACTION No. 12-4300
CourtU.S. District Court — Eastern District of Pennsylvania



For a second time in this case, the Court is called upon to rule on summary judgment motions. In 2013, the Court granted Defendant Officer William Bailey's Motion for Summary Judgment and denied the City of Philadelphia's Motion for Summary Judgment. Washington-Pope v. City of Philadelphia, 979 F. Supp. 2d 544 (E.D. Pa. 2013) ("Washington-Pope I"). The City has now filed this second motion seeking to extricate itself from the case. The City's principle argument is that Plaintiff Yolaina Washington-Pope has failed to come forward with sufficient evidence to establish municipal liability pursuant to Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). After reviewing the record and the parties' submissions, however, the Court must conclude that Ms. Washington-Pope has raised an issue of material fact regarding the existence of a municipal policy within the department that operated as the "moving force" behind her injuries. Consequently, the Court is required to deny the Motion.


The Court's 2013 summary judgment opinion presents a substantial summary of the facts surrounding the incident which gave rise to this litigation. See Washington-Pope I at 546-49. Given the different issues raised in the City's Motion here, however, we will recount the facts established therein, particularly those essential to this holding.

In 2010, Yolaina Washington-Pope was employed as a Philadelphia police officer. On the evening of September 24, she was on duty, in a patrol car patrolling West Philadelphia with her partner, Officer William Bailey. Deposition of Yolaina C. Washington-Pope, 16 (March 22, 2013) (hereinafter "Washington-Pope at ___").1 She had previously served as Officer Bailey's field training officer and during her time with him, she had observed him demonstrate a pattern of immature and inappropriate behavior. She had reported this conduct to her superiors and requested a different partner. Washington-Pope at 29-30.

Early in the shift on September 24, Officer Bailey "began behaving strange[ly]." On Duty Incident 09-23-10 Report, 2 (September 27, 2010).2 He reported to Officer Washington-Pope that he heard noises in the car (which she did not) and at one point he stopped the car and searched it using his flashlight. Id. This search yielded nothing and the officers continued their patrol. Later in the shift, Officer Bailey expressed to the Plaintiff that he thought a car was following them, but Officer Washington-Pope saw no such car. Washington-Pope at 47. Officer Bailey also made a reference to eating and drinking, but when Officer Washington-Pope asked if he would like to get some food, he replied that he had already eaten. Id. at 32.

Officer Bailey's History of Diabetes

Officer Bailey suffers from Type-1 diabetes and has for his entire life. Deposition of Officer William Bailey, 18-19 (March 7, 2013) (hereinafter "Bailey at ___")3; Expert Report of Jonathan Williams, 1 (November 13, 2014) (hereinafter "Williams Rep. at ___").4 Type-1diabetes is a disease which often requires the continuous use of insulin for survival. It is undisputed that Officer Bailey's diabetes was uncontrolled; he suffered from erratic blood glucose control, which put him at an increased risk of recurrent severe hypoglycemia. Williams Rep. at 1. Hypoglycemia can involve sudden disorientation or incapacitation. Expert Report of Dr. Robert Swotinsky, 5 (November 13, 2014) (hereinafter "Swotinsky Rep. at ___").5 According to expert reports submitted by the Plaintiff (and not disputed by the City) the use of insulin is a safety concern for any individual required to carry a gun for his or her job. Id.

In light of the risk, certain agencies have adopted standards regarding a diabetic police officer's fitness for duty. In 2006, the American Diabetes Association (ADA) and the American College of Occupational and Environmental Medicine (ACOEM) developed a national standard for determining a diabetic police officer's fitness for duty. This protocol requires a "narrative report from the treating endocrinologist or other physician knowledgeable about diabetes management certifying whether the law enforcement officer has been stable and is educated and informed of procedures for managing his condition and responding to complications as they arise." Swotinsky Report at 6 (citing ADA/ACOEM 2006 Fitness for Duty Examination Protocol for Police Officers with Insulin-Dependent Diabetes). Other law enforcement departments and agencies exclude from service anyone who has had a severe hypoglycemic episode during the previous five years. Id. at 5. The ADA advises that two or more episodes of severe hypoglycemia per year may indicate that a person cannot safely operate a motor vehicle. Id. at 9 (citing American Diabetes Association, Position Statement: Diabetes and Driving, Diabetes Care 2013;36:S80-S85). Pursuant to all these standards, hypoglycemia—particularly repeated episodes of incapacitating hypoglycemia—can be cause for exclusion from jobs or tasks that involve significant risk of harm to employees or the public.

Officer Bailey was evaluated by department doctors Oriente and Murray in April and September 2008, prior to his entering the Philadelphia Police Academy. During these exams, Office Bailey informed the department physicians that he was diabetic and took insulin. During his September 2008 exam, his lab results indicated fasting blood sugar levels of 190 mg/dl and 4+ glycosuria (sugar in his urine). Swotinsky Rep. at 4; Deposition of Dr. George Hayes, 75-76 (May 21, 2013) (hereinafter "Hayes at ___").6 Such results are indicative of uncontrolled diabetes. Following these preplacement exams, however, he was approved for service, id. at 70-71, but instructed by Dr. Murray that he should follow up with a specialist regarding his diabetes. Dr. Murray did not verify that these appointments took place. Drs. Murray and Oriente did not then report to superiors their concerns regarding Officer Bailey's diabetes.

After this set of initial exams, but prior to the evening of September 24, 2010, Officer Bailey experienced three hypoglycemic incidents on the job which resulted in his being hospitalized for low blood sugar. The first incident occurred in May 2009 while Officer Bailey was still a cadet at the Philadelphia Police Academy. He testified that, following a particularly grueling run that morning, his low blood sugar forced him to excuse himself from class in order to get something to eat. Bailey at 29-30. After he ate, he sat down in the hallway and waited for his blood sugar to come back up. This apparently took some time and eventually his instructors came looking for him. After they found him, they decided to call an ambulance to take him to the hospital. Id. at 30. Accounts of the incident differ, but there is no evidence on the record that he was violent at this time.7

A second incident occurred while Officer Bailey was on foot patrol with several other officers. Officer Adam Stennett, one of the officers present, recounted in a statement that Officer Bailey was drinking an Arizona Iced Tea when his hand began shaking so badly he dropped the bottle. Stennett at 2. He then began "duck walking," which Officer Stennett describes as: "he would go forward as he went down on each knee and was shaking." Id. Initially his colleagues thought Officer Bailey was joking, but they eventually realized what was happening and radioed for an ambulance. Id.; see Bailey at 41. At the hospital, Officer Bailey was told by the treating physician that he needed to carry an insulin pump to help him manage his diabetes. Deposition of Officer Cheryl Newton, 11-13 (October 8, 2014).

The final incident occurred in September 2009, outside the 19th District police headquarters. At the end of his duty assignment, Officer Bailey was observed by Officer Terrelle Green, standing outside the station near his police cruiser. See Statement of P/O Terrelle Green, 2 (October 20, 2010) (hereinafter "Green at ___").8 As it was the end of his shift, Officer Bailey was supposed to go inside the station and turn in his radio. He failed to do so, however, and remained outside. Officer Green stated that he appeared "a little dazed." Id. He observed Officer Bailey eating something by his car and then later taking his "tablets," which Officer Green understood were intended raise his blood sugar. Id. After Officer Bailey failed to come in the station for some period of time, Lieutenant Demetrius Monk and the sergeant on duty went out to attempt to get Officer Bailey to come inside. Id.

Officer Green reported that Officer Bailey was "laughing and joking" but moving away from the other officers and still refusing to come inside. Officer Green also saw him "unsnap" and then re-snap the holster holding his service weapon. He was not observed to put his hand on his gun, however. Id. Eventually Lieutenant Monk took Officer Bailey's gun away and led him inside. While hearsay accounts indicate that he was also chased around the patrol car, Officer Yolaina Pope, On Duty Incident 09-24-10, 2 (September 27, 2010) (hereinafter "Pope Statement at ___")9, the eyewitness account in the record does not support this version of events, Green at 2. Officer Green stated that the officers did not have to chase Officer Bailey or grab him or hold him. Id.

The record indicates that all involved viewed this as a serious and potentially dangerous incident. Deposition of Demetrius Monk, 31 (June 5, 2014) (hereinafter "Monk at ___")10; Deposition of Kenneth Kimchuk, 55 (June 5, 2014) (hereinafter "Kimchuk at ___").11 Lieutenant Monk testified that a properly trained and competent officer would only unsnap his holster if he was planning on taking his...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT