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Andrews v. City of Philadelphia

filed: February 8, 1990.


Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 88-4101.

Becker, Cowen, and Rosenn, Circuit Judges.

Author: Rosenn


ROSENN, Circuit Judge.

This appeal presents us with several perturbing issues involving the newly emerging jurisprudence concerning sexual harassment. We must not only enunciate standards to be applied in section 1983 (42 U.S.C. § 1983) claims for sexual harassment and Title VII (42 U.S.C. § 2000e et seq) claims based upon a hostile work environment, but also determine how jury findings in the section 1983 claim affect the Title VII claim. Additionally, we are asked to consider concepts of qualified immunity under section 1983 and municipal liability under both section 1983 and Title VII. Finally, we must also evaluate the tort of intentional infliction of emotional distress under Pennsylvania law.

Plaintiffs, Priscilla Kelsey Andrews (Andrews) and Debra Ann Conn (Conn), were members of the Accident Investigation Division (AID) of the Philadelphia Police Department. Both claim that because of their sex they were harassed by their fellow workers and supervisors. The harassment allegedly included abusive language, destruction of property and work product, anonymous telephone calls and, eventually, physical injury to Andrews. They brought suit on a host of legal theories in the United States District Court for the Eastern District of Pennsylvania against the City of Philadelphia, Mayor Wilson Goode, Police Commissioner Kevin Tucker, Director of Police Personnel Orville Jones, AID Commanding Officer Captain Joseph Liciardello, Kelsey Andrews' direct supervisor, Sergeant Frank Doyle, and a John Doe defendant.

The section 1983 claims and the intentional infliction of emotional distress claims were tried to a jury and the Title VII claims to the bench. The jury found in favor of Andrews and against Philadelphia, Liciardello and Doyle on Andrews' section 1983 claim. The jury found in favor of Conn against Philadelphia and Liciardello on Conn's section 1983 claims. The jury found in favor of Conn against Liciardello and in favor of Andrews against Liciardello and Doyle on the claims for intentional infliction of emotional distress. The court in separate findings entered immediately after the jury verdict found for the defendant Philadelphia on the Title VII claims.

Following the verdicts, the plaintiffs moved pursuant to Federal Rule of Civil Procedure 59(a) to have the court alter its judgment to make it consistent with the jury's verdict and the defendants moved for judgment notwithstanding the verdict (n.o.v.) on the intentional infliction claims and the section 1983 claims against the City, Liciardello and Doyle. The court denied the plaintiffs' motion, as well as the defendants' motion, with respect to the section 1983 judgments against Liciardello and Doyle but granted the defendants' motion and entered judgment n.o.v. in favor of the defendants on the intentional infliction of emotional distress claims and the section 1983 claim against the City.

Plaintiffs appeal the judgments n.o.v., arguing that there was sufficient evidence to support the jury verdicts. They also appeal the Title VII judgment arguing that the trial judge misapplied the law and failed to reconcile his decision with the verdict of the jury. Finally, they appeal the earlier entry of a directed verdict in favor of the John Doe defendant. The defendants cross-appeal, arguing that Liciardello and Doyle were protected by their qualified immunity and, thus, judgments n.o.v. should have been granted in the 1983 claims against them. We affirm in part and vacate in part.


AID is an extremely busy division of the Philadelphia Police Department which investigates vehicular accidents involving property or personal injury. Officers in AID are expected to investigate thoroughly an accident and file a report describing the accident and its causes.

AID is broken down into several squads. Each squad operates independently and works different shifts, under the authority of separate sergeants, though all are under the ultimate authority of the same commanding officer. At her request, the Police Department transferred plaintiff Andrews to AID in February 1986 and assigned her to the squad under the direct supervision of defendant Doyle. Plaintiff Conn was assigned to a different squad in the Division in May 1986. In June 1986 Captain Liciardello became the Commanding Officer of the Division. When the plaintiffs came to AID, males dominated the Division and each plaintiff was the only woman in her squad. Prior to this litigation, they had never met.

According to the plaintiffs, the AID squadroom was charged with sexism. They both claim that women regularly were referred to in an offensive and obscene manner, and that they personally were addressed by the obscenities. Other women in the Division also confirmed the male use of obscenities in referring to women. Although there was evidence that such language was commonplace in police quarters, there was also testimony that such language was not ordinary, and Conn, a twelve-year police veteran, went as far as to say that she "had never been called some of the names that [she] was called in AID."

There was also evidence of pornographic pictures of women displayed in the locker room on the inside of a locker which most often was kept open. Plaintiffs contend that the language and the pictures embarrassed, humiliated and harassed them. Other female officers at AID expressed similar reactions to the pictures and language. The office setup of AID enabled both Liciardello and Doyle to see the pictures and hear the language. This environment led Sergeant Connie Hurst, a female police officer who was at AID during 1986 and 1987, to conclude that AID "was one of the sexist, racist units in the Police Department."

A. Andrews

Andrews, a black female, joined the police force in 1980 and went on active duty as a patrol officer in February 1982 in the Fourth Police District. During her time in the Fourth District she consistently received satisfactory performance ratings, though her supervisor says that she required more direct supervision than other members of the squad. Toward the end of her assignment she lodged a complaint against her supervisor for racial discrimination. The charges were ultimately found to be groundless. In February 1986, pursuant to a transfer application, she was transferred into AID.

Andrews had some difficulty with the work at AID, often making mistakes in conducting investigations and filing reports. Sergeant Doyle found himself compelled to send many case reports back to her for extensive corrections. The parties differ over how severe the mistakes were, with Andrews claiming that they were simply mistakes of inexperience and later harassment, and the defendants claiming that the mistakes were extreme. Andrews also had organizational problems; her files were often disorganized and she often misplaced, forgot, and lost police department equipment. On two instances she even misplaced her weapon. Similarly, against division policy, she on one occasion mistakenly brought six case files home with her on vacation. Nonetheless, she received overall performance evaluations of satisfactory in both of her yearly evaluations at AID, though in her 1987 evaluation, AID graded her unsatisfactory in the categories of quality of work, work habits, and promotional potential.

One particular form of difficulty which plagued Andrews was the loss of her case files. There is no direct evidence of how or why those cases were lost. Andrews contends that her coworkers stole or hid her cases in an attempt to harass her. The defendants claim that she lost the files herself as a result of her carelessness and disorganization. Because she had to reconstruct the lost cases, Andrews fell increasingly behind in her work.

The Division, in an attempt to assist Andrews, gave her additional training and guidance. Sergeant Doyle designed a flow chart to track her cases. Lieutenant Viola Mitchell, a black female superior officer in AID, also gave her a great deal of assistance. Mitchell advised Andrews to keep all of her notes in steno pads and to retain duplicates so if any additional files disappeared it would take less effort to reproduce the report. After these steps were taken the loss of case files abated, but further destruction of Andrews' work product followed. She claims that one steno pad in which she had been taking notes disappeared from the top of her desk, and one after she had given it to Sergeant Doyle during an investigation. Additionally, several cases which Doyle had returned to her for correction were scribbled on while they were on her desk. Later, seven case files on her desk were ripped. Again, it was never determined who removed the steno pads or destroyed the case files.

Andrews further claims that the male officers refused to assist her in her work, further hindering her efforts, although they would often help each other. She says that they completely ignored her and alienated her. Also, she claims that Doyle would not take her off the rotating assignment wheel, and thus give her a lighter case load in order to catch up, although he often took male officers "off the wheel" when they fell behind. Eventually, Doyle did take her "off the wheel" for a day, but then nearly immediately after, he assigned her to a complicated "fatal" case, which she feels should have been assigned to another officer who was also "off the wheel."

Andrews also experienced some vandalism of her personal property. Her car was thrice vandalized while parked in the AID parking lot. On one occasion the tires were slashed; at other times the car was scratched and the windshield wipers removed. However, on the same date that Andrews' tires were slashed, the tires of a male officer in another division also were slashed. Additionally, the same day that her case files were ripped somebody poured soda into her typewriter, forcing her to have it repaired. Finally, someone ripped the cover off her Motor Vehicle Code book, and her appointment book, which she needed to keep track of investigations and court dates, disappeared. She made complaints about each of these incidents but they were not investigated.

Andrews' problems did not end at the workplace. When she returned home she says she was haunted by anonymous phone calls. These calls were made during two periods of time: the beginning of 1987 and just prior to this suit going to trial. According to Andrews' daughter's testimony, during one of these calls she heard someone say "Yoh, sarge" in the background. During others, the caller told her that her mother was sleeping with Conn and that "those bitches ain't getting no money because they think they trying to get money but they not going to get none." Although the telephone number was unlisted, AID officers had access to it.

The most egregious incident occurred when a lime substance was placed inside of Andrews' shirt. She had several articles of clothing in her locker in the women's locker room. She testified that when she put on one of the shirts, her back was severely burned by what was later determined to be a lime substance. She, along with Doyle and another sergeant, eventually found additional lime on the other clothing in her locker and on the locker door. Again, it is undetermined who put the lime in her locker and on her clothing. An Internal Affairs Division (IAD) investigation determined that it is unlikely that a male officer could have done it because of the likelihood of detection of a male in the women's locker room. Andrews claims, though, that both male and female officers used the women's locker room.

Following the shirt incident, Andrews was placed on injured duty status. Four days later, she failed to appear in court as scheduled. However, on that same day, she went to IAD to file a complaint about the shirt incident. Subsequently, the AID commanding officer disciplined her for failing to appear in court.

Andrews also contends that Doyle acted toward her in a sexually suggestive manner. She claims that he spent an inordinate amount of time at her desk, something confirmed by Mitchell, and that he breathed heavily down her neck and spoke to her in seductive tones about her and his personal lives. Doyle claims that he spent a lot of time with her because she needed a great deal of supervision. He also claims that his "seductive tone" was nothing more than a hushed tone used so others in the unit would not hear him criticizing Andrews. She also says that lewd pictures were posted on the walls and that she was embarrassed by pornographic pictures placed in her personal desk drawer. She also specifically described salacious, sexist terms addressed to her by her male coworkers.

B. Conn

Debra Ann Conn, a white female, joined the police force in 1977 and graduated from the Police Academy in 1978. She had several police assignments prior to AID. She consistently received satisfactory reviews and also received several commendations. During her assignment to the Narcotics Division, she was seriously injured while attempting to make an undercover drug deal. She reported that in none of her past assignments did she have any problem getting along with male officers. She was a member of the plaintiff class, though not a named representative, in a prior sex discrimination suit against the Philadelphia Police Department. She transferred into AID in May of 1986.

Upon transferring into AID, Conn faced some sexism, but generally met acceptance. Officer Stock asked her with whom she had slept to get assigned to AID. Stock later propositioned her on several occasions. But overall, she says the squad was "not overtly hostile." In November of 1986, though, Conn temporarily left for training and upon her return she found the makeup of the squad had changed. Only she and Stock remained.

According to Conn, when she returned from training and after she declined Stock's propositions, his attitude towards her changed; it became "aggravated" and "unfriendly." Also, the new squad members were "very indifferent" and "very negative." They refused to help her with her work, although they helped each other. They also harassed her by placing sexual devices and pornographic magazines in her desk drawer and gathering around and laughing at her reaction. She also recounted the sexually foul and lascivious language addressed to her specifically and women generally. When she complained to her superior, Sergeant Byrne, who was not made a party to the lawsuit, he remained unresponsive.

Conn also had her problems with missing case files. One case file in particular, eventually found, created a problem. Conn had worked on a major train accident. Liciardello needed the file and when he tried to obtain it, he could not find it. Conn, on vacation when Liciardello first looked for the file, returned and also looked for it but without success. The second day after her return, the case was found, reportedly in her briefcase. Conn claims to have checked her briefcase and also asserted that the case had been properly filed in the filing cabinet before she left for vacation. When Liciardello confronted Conn about the file, he tried to determine who might be sabotaging her files. He then warned her, "You know, you're no spring chicken. You have to expect this working with the guys." Several weeks later, after Conn had requested a transfer, Liciardello made a similar comment, saying, "You women don't know what you want. Why don't you stay in one place like a man?"

On a separate occasion five other case files were lost. At this point, Sergeant Byrne became concerned that a pattern was emerging, similar to the incidents involving Andrews, and he communicated with Liciardello and others in AID. Other female officers in AID also became apprehensive and found themselves compelled to take precautionary measures to prevent the disappearance of their cases. Additionally, a roll of film which Conn was using in an investigation also disappeared before it was dispatched for developing. Possibly, the film was accidentally lost or thrown away. AID never conducted an investigation of any of these disappearances. The loss of case files caused anxiety, frustration, and an intolerable work environment, one, according to Mitchell, where "not even Sherlock Holmes could function."

Conn also experienced vandalism. Someone spit on her coat, cut the band off her hat, and scratched her car. She believed all this damage occurred at AID though her car might have been scratched in front of her residence.

Conn also clashed with her supervisors over an incident involving a pornographic movie which some of the AID officers were watching in the squad room. Conn had been going in and out of the room to ask work-related questions of one of the squad members and to work on the computer located in the room; however, she claims not to have watched the movie. Following this incident, the members of the squad were required to write memoranda concerning the incident. One officer, Corporal DeJarnette, claims that Sergeant Byrne explicitly instructed him to include Conn among those parties present when the film was shown. Byrne denies this. Conn also received instructions to file a memorandum. When Liciardello determined that her ...

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