Fuller v. City of Oakland, Cal.
| Decision Date | 24 April 1995 |
| Docket Number | 92-16402,Nos. 92-16081,s. 92-16081 |
| Citation | 47 F.3d 1522 |
| Parties | 67 Fair Empl.Prac.Cas. (BNA) 153, 67 Fair Empl.Prac.Cas. (BNA) 992, 65 Empl. Prac. Dec. P 43,431, 63 USLW 2576, 31 Fed.R.Serv.3d 617 Patricia FULLER, Plaintiff-Appellant, v. CITY OF OAKLAND, CALIFORNIA; George Hart; Antonio Romero, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sheila A. Reid, John Houston Scott, San Francisco, CA, for plaintiff-appellant.
Kathy Banke, Crosby, Heafey, Roach & May, Oakland, CA, Marilyn Kaplan, Deputy City Atty., Oakland, CA, for defendants-appellees.
Appeals from the United States District Court for the Northern District of California.
Before: GOODWIN, POOLE and REINHARDT, Circuit Judges.
Patricia Fuller, a former Oakland police officer, appeals the district court's entry of judgment against her on her claims for sex discrimination and sexual harassment. Fuller sued the City of Oakland under Title VII and 42 U.S.C. Sec. 1983 after it allegedly failed to properly investigate her complaints and take appropriate steps to end the harassment. After a bench trial, the district court found against Fuller on both claims, concluding that all harassment stopped as soon as the Police Department learned of the situation. The district court also ruled that even though the subsequent investigation was seriously flawed, Sec. 1983 liability could not attach because no city policymaker ever decided to conduct the investigation in a discriminatory manner.
On appeal, Fuller argues that the district court erred because the harassment continued after the Department learned of it and the Department failed to take reasonable steps to end it. Fuller also alleges that she was deprived of her right to a jury trial on the Sec. 1983 claim. We reverse the district court's judgment against Fuller on her Title VII claim and remand for a determination on the appropriate remedy. Moreover, we agree that a jury trial was never properly waived. Nor was any error in the denial of a jury trial harmless, because the record does not establish that the district court could have granted summary judgment sua sponte. Accordingly, we reverse and remand on the Sec. 1983 claim as well.
Patricia Fuller served as a police officer for the City of Oakland from 1985 to 1989. Beginning in 1986, she had a romantic relationship with a fellow officer, Antonio Romero. By September 1986, Fuller no longer wished to continue the relationship. What followed is a disturbing tale.
During the summer of 1986, Fuller had received a series of hang-up calls at home. These stopped when she changed her number again. In September 1986, Fuller received up to 25 hang-up calls a day, only on her days off. The calls continued after she changed her number in October, and again after she moved and changed her number in December. Calls in January, received only on her nights off, continued only on her nights off even after her work schedule changed. Fuller's number was unlisted, but available to Oakland Police Department employees.
After September, Romero continued to call Fuller at home and at work, write her, and track her down on her beat. By March 1987, Romero had acknowledged that Fuller no longer wanted to see him. Shortly thereafter, he called her at work and threatened to kill himself. Fuller changed her home number. A few days later, as Fuller approached her car near the officers' parking lot, Romero confronted her about changing her number. He blocked her car from leaving, held open her car door, and extorted her new number by making it clear he would not let her leave until she gave it to him.
In April, Romero called Fuller to angrily question her about a new boyfriend, and Fuller changed her number again. Romero called her the next week, despite her request that he no longer call her, and claimed he had "inadvertently" come across her number in the personnel files.
In July 1987, Fuller was driving her boyfriend (another fellow officer) home during the day. Romero came speeding at them in an unmarked police car, and Fuller was forced to swerve to avoid a head-on collision. She believed he was following her. Romero later lied both to her and to the IA investigator about where he had been headed.
In October, Romero was transferred into a position with supervisory authority over Fuller. At this time, other officers learned of Romero's prior conduct and, over Fuller's objections, the matter was brought to the attention of Police Chief George Hart. Fuller did not want an Internal Affairs ("IA") investigation because she feared for her safety given Romero's drinking and prior threat of suicide. Nevertheless, the Department began an IA investigation. In late October, Lieutenant Clyde Simms, the head of IA, met with Fuller and offered an immediate transfer; she refused. 1
During the next two months, Romero conducted an investigation of the arrest rates of officers engaged in pro-active drug enforcement, which Fuller contends focused solely on herself and her allies in the department. Romero approved several work requests from Fuller, sometimes after some delay, and Fuller believes these requests were delayed in order to harass her. In December, Romero asked Fuller to speak up during a line-up and ordered her to report to her station in tones Fuller read as harassing. That same month, Fuller married her boyfriend and took pregnancy-induced light duty in what she considered an unfavorable assignment.
On December 28, the IA investigating officer, John Parker, recommended closing the investigation for lack of evidence. At the time, Parker had not even interviewed Romero or numerous other percipient witnesses, and none of the documents gathered to that point gave reason to believe Fuller had been untruthful. Parker's recommendation was in part based on the fact that a phone trap, initiated after Romero had learned of the investigation, showed no calls from Romero to Fuller. The investigation was not closed, but Officer Parker still delayed interviewing Romero until February 16, shortly after Fuller had filed an EEO complaint and the EEOC had contacted the Department. After some further investigation, the final IA report recommended a finding of "Unfounded," meaning that evidence sufficiently proved the alleged incidents did not occur. Chief Hart approved this report.
Fuller remained on light duty or on pregnancy leave for the remainder of 1988. In late 1988, based on a rumor that Romero would be transferred, she selected her old shift for the following year. Fuller soon learned Romero had not been transferred. She did not then formally request a transfer for herself. Instead, facing a statute of limitations problem, she filed suit and sent a letter concerning the situation to the city's Affirmative Action Counselor. In March 1989, Fuller returned to duty in a post subordinate to that of Romero.
Fuller identifies a handful of further incidents she considered harassing. Romero conducted a short investigation of Fuller's handling of a stabbing victim who died after she reached the scene. He also asked her for an alibi after his car was stolen. Fuller asserts additionally that Romero on one occasion unnecessarily called her to the podium during a lineup. Fuller reported feeling ostracized and afraid for her safety, because visible isolation on the beat endangers an officer's safety. Fuller developed a severe stress disorder and went on disability leave.
One of Fuller's examining psychiatrists wrote a letter concluding that Fuller should not be returned to duty under Romero. However, Fuller was cleared for return to duty and told she would be assigned to a post subordinate to that of Romero. Rather than face this prospect, she resigned.
Fuller initially filed suit against the City of Oakland, Romero, and Chief Hart. Romero and Hart have been dismissed as defendants, and the City is the only defendant remaining. The only claims remaining are under Title VII, for sexual harassment, and under 42 U.S.C. Sec. 1983, for sex discrimination in the conduct of the IA investigation.
On January 11, 1991, Fuller's attorney filed a letter with the district court waiving a jury trial. Later in the same month, the defendants refused to waive their right to a jury, thereby requesting one. A bench trial was conducted in September, and Fuller understood the Title VII claim to be the only one at issue. However, the district court issued a judgment finding against Fuller on both remaining claims. The City of Oakland assented to the judgment, and the district court deemed its request for a jury waived. When Fuller objected, the district court allowed her to submit an offer of proof as to what a second trial would show with regard to her Sec. 1983 claim. After considering the proffer, the district court reentered judgment on the Sec. 1983 claim. Fuller has timely appealed.
We must decide whether the City of Oakland violated Title VII, and whether Fuller was deprived of her Seventh Amendment right to a jury trial.
Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., expressly prohibits sex discrimination in employment. 42 U.S.C. Sec. 2000e-2(a)(1). This general prohibition extends to sexual harassment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). On appeal, Fuller attempts to prove sexual harassment only under a "hostile work environment" theory, one of two available to her. 2 To prove that such an environment existed, she must show that: 1) she was subjected to verbal or physical conduct of a sexual nature, 2) this conduct was unwelcome, and 3) the conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991); accord EEOC v. Hacienda Hotel, 881 F.2d...
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