Mikels v. City of Durham

• Decision Date: 08 April 1998
• Docket Number: No. 96-2560,PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,CA-95-261-1,96-2560
• Citation: 183 F.3d 323
• Parties: (4th Cir. 1999) JASEY MIKELS,, v. CITY OF DURHAM, NORTH CAROLINA,() Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 323

183 F.3d 323 (4th Cir. 1999)

JASEY MIKELS, PLAINTIFF-APPELLANT, v. CITY OF DURHAM, NORTH CAROLINA, DEFENDANT-APPELLEE. (CA-95-261-1)

No. 96-2560

U.S. Court of Appeals, Fourth Circuit

Argued: April 8, 1998

June 29, 1999

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, District Judge. [Copyrighted Material Omitted] ARGUED: R. Hayes Hofler, III, Hayes Hofler & Associates, P.a., Durham, North Carolina, for Appellant. Reginald B. Gillespie, Jr., Faison & Gillespie, Durham, North Carolina, for Appellee.

ON BRIEF: Laurel E. Solomon, Hayes Hofler & Associates, P.a., Durham, North Carolina, for Appellant. Keith D. Burns, Faison & Gillespie, Durham, North Carolina, for Appellee.

Before Williams, Circuit Judge, Phillips, Senior Circuit Judge, and G. Ross Anderson, Jr., United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Senior Judge Phillips wrote the opinion, in which Judge Williams and Judge Anderson joined.

OPINION

Phillips, Senior Circuit Judge

Jasey Mikels appeals the district court's entry of summary judgment for defendant City of Durham ("City") on her Title VII and § 1983 "hostile environment" sexual harassment claims. The district court dismissed both claims, concluding that once made aware of the allegedly harassing conduct, the City had taken prompt and adequate remedial measures to relieve it of liability under Title VII and that the City did not have a custom or policy which caused the conduct so as to make it liable for that conduct on the § 1983 claim. We affirm.

I.

The essential facts of the case, either undisputed or, where disputed, recited in the light most favorable to Mikels as non-movant on the summary judgment record, are as follows. Mikels began work as a police officer for the City in May 1988. Around midnight on March 28-29, 1993, while both were on duty as members of SquA.D.2d, Corporal Robert Acker grabbed Mikels on each side of her face, pulled her to him, and kissed her on the mouth. This unwelcome act was preceded by several seconds of "shadow boxing" in which Acker repeatedly jabbed at Mikels' face without actually hitting her. Immediately after Acker kissed her, Mikels pushed him away and demanded that he never touch her again. Mikels expressed her displeasure in clear and certain terms and Acker immediately apologized. Mikels did not accept the apology.

This incident occurred in the presence of several other police officers, including Mikels' and Acker's immediate supervisor, Sergeant Robert Cox. Cox did not immediately respond, but after a few moments, he came over, put his hand on Mikels' shoulder, and stated "he apologizes, she accepts, it's over with." Shortly afterward and during that shift, Cox privately issued an oral reprimand and warning to Acker, advising him that the conduct was inappropriate, would not be tolerated and if repeated would subject him to more severe punishment. During a follow-up meeting with Mikels in which Cox advised her of his having reprimanded Acker, Mikels repeated her objection to the conduct and told Cox of an incident some five months before in which Acker had made unwelcome sexually suggestive bodily contact with her. This was her first report of the earlier incident. During the next work shift on March 29-30, Cox reported the March 28-29 kissing incident to his immediate supervisor, Captain Rigsbee, and by Rigsbee's direction issued a formal reprimand and warning to Acker in the form of a written memorandum confirming those earlier given orally. In this memorandum, Cox characterized the incident as "horseplay" but as conduct violative of departmental rules and regulations which if repeated would "lead to stricter disciplinary action," and he incorrectly stated (as later determined on conflicting evidence in an internal review process) that Mikels had accepted Acker's immediate apology. Cox also met with the entire 2D squad and warned that horseplay, practical joking and the like would not be tolerated in the future, and Cox and Rigsbee met with the four female members of the squad other than Mikels to discuss the incident and to determine whether and to what extent they had experienced or observed comparable conduct.

During the March 29-30 shift, Mikels told Cox that she was filing a formal administrative complaint respecting the kissing incident. Cox advised her against doing so, suggesting, according to Mikels, that she would "regret it." Mikels nevertheless filed her complaint with the Internal Affairs Division of the Department on March 30. And, when Acker then reported for duty on April 2, he was summoned to Police Headquarters and placed on administrative leave with pay for two months. During this period of leave, he was transferred to another squad effective upon his return from leave.

Following an extensive internal investigation of Mikels' complaint, the investigating officer prepared a report and recommendation which was forwarded for action to Police Chief Jackie W. McNeill. Acting upon the report, Chief McNeill found that Acker's conduct in the March 28-29 incident violated the City's sexual harassment policy and constituted conduct unbecoming a police officer in violation of Department regulations. McNeill ordered a two-week suspension without pay, reduction in rank, transfer to another department, and corrective counseling.

Acker appealed this disciplinary action through employee grievance procedures. A five-member Police Department Board of Inquiry conducted a new evidentiary hearing. Following its own review, the Board concurred in Chief McNeill's recommendations, affirming his findings that Acker had violated the City's sexual harassment policy and the Department regulations respecting officer conduct.

Acker appealed again, this time exercising his final administrative option: review by the City Manager's Office. Assistant City Manager Cecil A. Brown conducted a hearing on Acker's grievance. Following the hearing and a review of internal affairs reports, on December 20, 1993, Brown, citing various steps in the internal departmental review process that he asserted were irregular, affirmed the imposition of a formal reprimand of Acker, but set aside the Board-approved further sanctions of demotion and pay reduction as unauthorized under Department procedures. The net effect of this final administrative action was to let stand the formal reprimand and warning imposed by Cox and the administratively ordered transfer of Acker to another squad, but to restore Acker to his pre-incident rank and pay-grade.

Following Cox's oral reprimand and warning of Acker immediately after the March 28-29 incident, neither Acker nor any other member of the Department engaged in any form of sexual harassment of Mikels. Acker and Mikels served together in squA.D.2d on only one shift following the March 28-29 incident. Upon Acker's return to active duty from the two-month's administrative leave that was imposed following the filing of Mikels' internal complaint, he and Mikels were in different squads, operating in different areas and on different work schedules as a result of Acker's administratively ordered transfer. They saw each other from time to time, but had no personal contact while on duty.

Mikels' filing of a formal complaint did, however, arouse great resentment on the part of some of her fellow officers, male and female, that caused her working conditions to become increasingly unpleasant. Some fellow officers openly voiced their resentment; some belittled the merits of her complaint, suggesting that she had effectively invited Acker's conduct by her own participation in similar conduct; some gave her the "silent treatment;" some refused to answer her calls for assistance. Some of her superiors were similarly resentful of what they considered her creation of trouble within the Department; one urged her to transfer from SquA.D.2d to escape the unpleasantness she was experiencing in that setting. Eventually, in December 1994, she did request and obtain a transfer to another squad where for a time her working conditions improved. This did not last, however, and she began increasingly to call in sick to escape the unpleasantness of her working conditions. Finally, because of her continued distress resulting from the unpleasantness which began with the March 28-29 kissing incident, she resigned from her employment in October 1995, claiming psychological problems resulting from the course of events triggered by the March 28-29, 1993 incident.

On January 6, 1994, shortly after Brown's final decision reducing the disciplinary sanctions imposed upon Acker, Mikels filed a charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC"). In it, she identified as the only basis of her charge Acker's March 1993 conduct and Brown's December 1993 decision, which she characterized as one that "exonerated[Acker] of all wrongdoing" and that found him "not guilty of sexual harassment."

Following the EEOC's issuance of a right-to-sue letter, Mikels commenced this action against the City, alleging parallel federal claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983, and a number of pendent statelaw tort claims.¹ The gravamen of her Title VII claim was that Acker's March 28-29, 1993, conduct was sexual harassment creating an "abusive or hostile workplace environment" for which the City was liable by reason of its failure to take prompt and adequate remedial measures respecting that conduct.² The gravamen of the § 1983 claim was that Acker's conduct was effectively caused by a City policy or custom which encouraged or acquiesced in such conduct by its employees.

In addition to denying essential elements of both federal claims, the City raised a statute of limitations defense to the Title VII claim, alleging untimely filing of...