Taylor v. Virginia Union University

• Decision Date: 09 June 1999
• Docket Number: CA-96-517,No. 97-1667,No. 97-1669,97-1667,97-1669
• Citation: 193 F.3d 219
• Parties: (4th Cir. 1999) LYNNE S. TAYLOR, Plaintiff-Appellant, and KEISHA JOHNSON, Plaintiff, v. VIRGINIA UNION UNIVERSITY, Defendant-Appellee. KEISHA JOHNSON, Plaintiff-Appellant, and LYNNE S. TAYLOR, Plaintiff, v. VIRGINIA UNION UNIVERSITY, Defendant-Appellee. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 219

193 F.3d 219 (4th Cir. 1999)

LYNNE S. TAYLOR, Plaintiff-Appellant and KEISHA JOHNSON, Plaintiff, v. VIRGINIA UNION UNIVERSITY, Defendant-Appellee.

KEISHA JOHNSON, Plaintiff-Appellant and LYNNE S. TAYLOR, Plaintiff, v. VIRGINIA UNION UNIVERSITY, Defendant-Appellee.

No. 97-1667 No. 97-1669 (CA-96-517).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 9, 1999.

Decided: September 27, 1999.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

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[Copyrighted Material Omitted] COUNSEL ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS & ASSOCIATES, P.C., Richmond, Virginia, for Appellants. Henry L. Marsh, III, HILL, TUCKER & MARSH, Richmond, Virginia, for Appellee. ON BRIEF: Clarence M. Dunnaville, Jr., Ephfrom R. Walker, III, HILL, TUCKER & MARSH, Richmond, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN,^* NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Hamilton wrote the opinion, in which Chief Judge Wilkinson and Judges Widener, Niemeyer, Luttig, Williams and Traxler joined. Judge Murnaghan wrote a dissenting opinion, in which Judges Michael, Motz and King joined. Judge Motz also wrote a separate dissenting opinion. Judge Wilkins did not participate in this case.

OPINION

HAMILTON, Circuit Judge:

This consolidated appeal involves various claims of gender discrimination brought by two former female patrol officers with the campus police department of Virginia Union University (VUU). See 42 U.S.C. § 2000e-2(a)(1). The officers, Lynne Taylor (Taylor) and Keisha Johnson (Johnson) (collectively the Plaintiffs), each alleged she: (1) was delayed in receiving a firearm; (2) was not promoted; (3) was not selected to attend the police academy operated by the Virginia Commonwealth University (the Police Academy); and (4) was discharged, because she is a woman.¹ Johnson alone alleged a sexual harassment claim.

Upon VUU's pretrial motion for summary judgment, the district court dismissed Johnson's sexual harassment claim for failure to exhaust her administrative remedies. The remaining claims proceeded to trial. At the close of all evidence, the district court granted VUU's motion for judgment as a matter of law with respect to all of Taylor's claims. Johnson's remaining claims went to the jury. The jury returned a verdict fully in favor of VUU, and the district court entered judgment thereon. This appeal followed.

A divided panel of this court affirmed the judgments in favor of VUU with respect to the Plaintiffs' claims alleging discriminatory delay in receiving firearms, but reversed the judgments in favor of VUU with respect to the Plaintiffs' failure to promote, failure to be sent to the Police Academy, and discharge claims and remanded for trial on those claims with instructions to allow the admission of certain previously excluded evidence. The divided panel also instructed the district court to reinstate Johnson's sexual harassment claim. Upon VUU's suggestion, we vacated the panel decision and reheard the case en banc. We now affirm the judgments entered by the district court in favor of VUU in all respects and affirm its dismissal of Johnson's sexual harassment claim.

I.

VUU's campus police department (the Department) consists of approximately twenty police officers. After a ninety-day probationary period, new hires entered the Department at the rank of patrol officer. Patrol officers could subsequently be promoted to the rank of corporal, sergeant, or lieutenant. For promotion to any rank higher than corporal, both oral and written examinations are required.

Until 1993, overall supervision of the Department was assigned to Walter H. Miller, VUU's Vice President for University Services (Department Supervisor Miller). For approximately a year thereafter, overall supervision of the Department was assigned to S. Dallas Simmons, VUU's President (Department Supervisor Simmons). In August 1994, overall supervision of the Department shifted to Anthony E. Manning, VUU's Vice President for University Relations (Department Supervisor Manning). Overall supervision of the Department included making significant personnel decisions such as hiring, firing, and promoting, with both formal and informal input from the Department's Chief of Police. However, the decision to recommend an individual for promotion to a rank above corporal was made by a panel of individuals from both inside and outside VUU. This panel consisted of individuals from the Virginia Commonwealth University's police department, the City of Richmond's police department, VUU faculty members, and certain senior officers in the Department. While the Department's Chief of Police was not a member of this panel, he would receive and forward the panel's recommendation to the Department Supervisor.

At all times relevant to this appeal, Eugene Wells (Chief Wells) served as the Department's Chief of Police. In this position, Chief Wells was responsible for the daily operation and administration of the Department, including the individual assignment of Department personnel and scheduling. Furthermore, as previously mentioned, Chief Wells had input with respect to significant personnel decisions, although the ultimate decision making authority rested with the Department Supervisor. However, Chief Wells was authorized to select who among the Department's officers could attend the Police Academy.²

Of relevance to this appeal, VUU's personnel manual required the following of a patrol officer in order to be promoted to the rank of corporal: (1) a minimum of six months as a VUU patrol officer; (2) no arrests for a criminal offense in the past twenty-four months unless found not guilty in a court of law; (3) ratings of satisfactory or above in all areas on the patrol officer's most recent performance evaluation; and (4) service with good conduct as evidenced by no disciplinary action within the previous six months. VUU's personnel manual required the following in order to be promoted to the rank of lieutenant: (1) a minimum of one year as a VUU police officer with at least one year as sergeant or of supervisory experience; (2) no arrests for a criminal offense in the past twenty-four months unless found not guilty in a court of law; (3) ratings of satisfactory or above in all areas on the most recent performance evaluation; (4) service with good conduct as evidenced by no disciplinary action within the previous twelve months; (5) submission of a letter of interest for promotion to the Department's Chief of Police; and (6) passage of qualifying oral and written examinations.

A. Taylor.

Taylor holds a bachelor of arts degree in journalism from Norfolk State University. After receiving her degree, she served on active duty status in the United States Army for an unspecified amount of time in Germany.³ Upon returning from Germany, Taylor attended military police school at Fort Meade in Maryland in preparation for deployment in connection with Operation Desert Storm. Approximately two days after Taylor graduated from military police school, the conflict giving rise to Operation Desert Storm ended, thus eliminating the necessity for Taylor's expected deployment.

Apparently no longer on active duty status in the United States Army, Taylor applied for the position of patrol officer at the Department, and in August 1992, Department Supervisor Miller hired Taylor as a patrol officer upon Chief Wells' recommendation. Taylor served her mandatory ninety-day probationary period with the Department without incident. In April 1993, Wells rated Taylor's communication skills as "marginal" in a written performance evaluation and encouraged her to improve in that area. Wells rated Taylor's skills in all other areas, including initiative, dependability, and leadership as satisfactory.⁴

Despite giving Taylor a "marginal" rating with respect to her communication skills, Wells allowed Taylor to serve on a regular basis as Acting Shift Supervisor starting in August 1994. In this position, Taylor supervised all activities on the assigned shift, informed officers of Department policies and procedures as they applied to the shift, ensured compliance with Department policies and procedures, and assigned officers to work details. After serving as Acting Shift Supervisor on a number of occasions, Taylor unsuccessfully sought promotion to the rank of corporal.⁵ According to VUU, Taylor's request for promotion was denied because of the marginal rating she had received in May 1993 with respect to her communication skills, and because she was less qualified than the male patrol officer selected for promotion. According to Taylor, most of the male officers who served as Acting Shift Supervisor were promoted to the rank of corporal. The record does not contain any evidence regarding the specific qualifications of the male officer who was promoted instead of Taylor.

Approximately two months after Taylor was denied promotion to the rank of corporal, in October 1994, Lieutenant Yancey responded to a complaint by a resident assistant that females were in the Omega fraternity room of Storer Hall in violation of VUU policy. Upon arriving at the entrance to the room, Lieutenant Yancey discovered the existence of a co-ed party. A member of the Omega fraternity then informed Lieutenant Yancey that one of the Department's female officers was in attendance as a guest. The officer was Taylor, who was off-duty. She had attended the party for "a little over . . . an hour."⁶ (J.A. 152). Her attendance was a direct violation of VUU policy regarding fraternization with students. Based upon Lieutenant Yancey's incident report and an investigation by Chief Wells, in November 1994, Chief Wells recommended to...