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Webb v. City of Philadelphia

April 7, 2009

KIMBERLIE D. WEBB, APPELLANT
v.
CITY OF PHILADELPHIA



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 05-cv-5238, (Honorable Harvey Bartle III).

The opinion of the court was delivered by: Scirica, Chief Judge.

PRECEDENTIAL

Argued September 9, 2008

Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.

OPINION OF THE COURT

In this employment discrimination case, the issue on appeal is whether a police officer's request to wear religious garb with her uniform could be reasonably accommodated without imposing an undue burden upon the City of Philadelphia. On the facts presented, the District Court held it could not. Webb v. City of Philadelphia, No. 05-5283, 2007 U.S. Dist. LEXIS 46872 (E.D. Pa. June 27, 2007). We agree.

I.

Kimberlie Webb is a practicing Muslim, employed by the City of Philadelphia as a police officer since 1995. On February 11, 2003, Webb requested permission from her commanding officer to wear a headscarf while in uniform and on duty. The headscarf (a khimar or hijaab) is a traditional headcovering worn by Muslim women. Webb's headscarf would cover neither her face nor her ears, but would cover her head and the back of her neck. Her request was denied in view of Philadelphia Police Department Directive 78, the authoritative memorandum which prescribes the approved Philadelphia police uniforms and equipment. Nothing in Directive 78 authorizes the wearing of religious symbols or garb as part of the uniform.*fn1

On February 28, 2003, Webb filed a complaint of religious discrimination under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission. On August 12, 2003, while the matter was pending before the EEOC, Webb arrived at work wearing her headscarf. She refused to remove it when requested and was sent home for failing to comply with Directive 78. The next two days' events were indistinguishable: Webb arrived at work in her uniform and her headscarf, which she refused to remove, and was then sent home. On August 14, Webb was informed her conduct could lead to disciplinary action. Thereafter, she reported to work without a headscarf. Disciplinary charges of insubordination were subsequently brought against Webb, resulting in a temporary thirteen-day suspension.

On October 5, 2005, Webb brought suit against the City of Philadelphia,*fn2 asserting three causes of action under Title VII-religious discrimination, retaliation/hostile work environment, and sex discrimination-and one cause of action under the Pennsylvania Religious Freedom Protection Act (RFPA), 71 Pa. Stat. Ann. § 2401. The District Court found that Directive 78 and "[its] detailed standards with no accommodation for religious symbols and attire not only promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force." Webb, 2007 U.S. Dist. LEXIS 46872, at *11--12. The District Court held the City would suffer an undue hardship if forced to permit Webb and other officers to wear religious clothing or ornamentation with their uniforms. The District Court granted summary judgment on all claims, finding Webb failed to exhaust her administrative remedies for the Title VII sex discrimination claim, failed to meet the statutory notice requirements for the RFPA claim, and failed to raise a genuine issue of material fact for the Title VII religious discrimination and retaliation/hostile work environment claims.

Webb appeals only the adverse judgments on the religious discrimination and sex discrimination claims. She also raises, for the first time on appeal, certain constitutional claims. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291.

"We undertake a plenary review of grants of summary judgment." Huber v. Taylor, 469 F.3d 67, 73 (3d Cir. 2006). "We view all evidence and draw all inferences therefrom in the light most favorable to the non-movant, affirming if no reasonable jury could find for the non-movant." Shelton v. Univ. of Med. and Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000).

[A]n appellate court may only review the record as it existed at the time summary judgment was entered. In reviewing a summary judgment order, an appellate court can consider only those papers that were before the trial court. The parties cannot add exhibits, depositions, or affidavits to support their position. Nor can they advance new theories or raise new issues in order to secure a reversal of the lower court's determination.

Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 126 (3d Cir. 2002) ...


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