Massachusetts State Police officer’s sexual discrimination lawsuit revives after partial victory in appeals court

A state police officer filed a lawsuit against the department alleging discrimination, retaliation and harassment. (Amanda Sabga/Boston Herald)

A state trooper who filed a sexual discrimination lawsuit against the Massachusetts State Police after allegedly catching a colleague having sex while on duty has won her appeal.

Kathryn Downey’s lawsuit against the scandal-plagued agency, which involved porn on a hard drive and an infamous Taser prank, is getting new life following this week’s ruling by the Massachusetts Court of Appeals.

Downey – who claims she was treated differently than male police officers – initially filed a sexual harassment, discrimination and retaliation lawsuit against the Massachusetts State Police and Officer Earl Johnson in 2018. The lawsuit was ultimately dismissed by a Suffolk Superior Court judge.

Downey then appealed the dismissal of the lawsuit, and this week the state Court of Appeals ruled that her entire lawsuit should not have been dismissed. The discrimination portion of the lawsuit now has a second chance, as the case is back on the Superior Court docket.

“We reverse the portion of summary judgment relating to Downey’s claims under GL c. 151B and Title VII (discrimination) based on the theory that the State Police committed disparate treatment by treating Downey less favorably than Johnson, (Steven) Wohlgemuth, or both,” the appeals court wrote.

Downey’s attorney, Leonard Kesten, said he had always been confident the appeals court would overturn the Supreme Court’s ruling.

“She was clearly treated differently than the men involved in this situation,” Kesten told the Herald on Friday. “She just wanted equal treatment.”

Downey, now a captain in the State Police, earned $207,000 last year and was formerly a defensive tactics instructor at the State Police Academy. There she began a romantic relationship with Johnson, who worked as a defensive tactics training coordinator and earned $164,000 as a police officer last year.

According to the lawsuit, in June 2016, Downey entered Johnson’s office to access training materials – a “not uncommon” occurrence for Downey and other instructors at the academy. While she was there, she noticed a personal credit card statement on Johnson’s desk that included a charge for a hotel stay while he was apparently on duty.

Downey returned to Johnson’s office later that day to retrieve an external hard drive that Johnson had connected to his computer at the State Police. Although the hard drive was Johnson’s personal property, Johnson also used it to store work-related materials and allowed his co-workers to access it.

“Downey discovered a folder containing sexually explicit photographs and video recordings showing Johnson, among other things, masturbating and engaging in sexual acts with other women,” the appeals court’s ruling states.

Downey ended her romantic relationship with Johnson later that same day.

Johnson is also said to have admitted to her that he had met a woman in a hotel for sex – which matches the credit card statement and was during the time when he must have been on duty.

As a result of all this, Downey filed a complaint – detailing the pornographic images and videos on the hard drive, as well as the allegation of sex while on duty. Johnson was permanently transferred from the academy where he was assigned for 10 years, and he was “very unhappy” about the transfer.

On the same day that Johnson received notice of his permanent transfer, he filed a complaint against Downey related to a Taser incident that had occurred 13 months earlier.

Downey reportedly aimed her Taser at Johnson while he and two other defensive tactics instructors, officers Wohlgemuth and David Lahair, were cleaning up the gym after a Taser training session.

Unbeknownst to Johnson, Downey had loaded her Taser with an “inert” or “practice” cartridge that had been modified to look like a “live” cartridge so that the barbs would bounce off the target. Downey deployed the Taser, hitting Johnson in the hip and stomach before the blunt metal pieces hit the ground.

“Downey admitted firing the Taser, but stated that she was only trying to play a ‘prank’ on Johnson; that the prank was Wohlgemuth’s idea and that the day before the incident he had shown her how he had modified inert cartridges to look like live ones; and that Wohlgemuth had provided the modified cartridge used in the prank,” the ruling states.

Downey and Wohlgemuth both expressed that they believed Johnson’s complaint was retaliation for Downey’s previous complaint against Johnson.

Downey was eventually permanently expelled from the academy and appealed the disciplinary action to the State Police Board of Inquiry, where she was ultimately reprimanded.