562 F.3d 256 (3rd Cir. 2009), 07-3081, Webb v. City of Philadelphia

Docket Nº:07-3081.
Citation:562 F.3d 256
Party Name:Kimberlie D. WEBB, Appellant v. CITY OF PHILADELPHIA.
Case Date:April 07, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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562 F.3d 256 (3rd Cir. 2009)

Kimberlie D. WEBB, Appellant



No. 07-3081.

United States Court of Appeals, Third Circuit.

April 7, 2009

Argued Sept. 9, 2008.

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Jeffrey M. Pollock, Esquire (Argued), Abbey T. Harris, Esquire, Fox Rothschild LLP, Lawrenceville, NJ, Seval Yildirim, Esquire, Costa Mesa, CA, for Appellant.

Eleanor N. Ewing, Esquire (Argued), City of Philadelphia Law Department, Philadelphia, PA, for Appellee.

John S. Ghose, Esquire, Fred T. Magaziner, Esquire, Dechert LLP, Philadelphia, PA, for Amici Curiae/Appellant, American Civil Liberties Union of Pennsylvania, American Civil Liberties Union, Council on American Islamic Relations, Majlis Ash'Shura, American Muslim Law Enforcement Officers Association, Islamic Society of North America, Muslim Public Affairs Council, Muslim Alliance in North America, Muslim American Society Freedom Foundation, The Sikh Coalition, and Shalom Center.

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

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SCIRICA, Chief Judge.

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 WL 1866763, 2007 U.S. Dist. LEXIS 46872 (E.D.Pa. June 27, 2007). We agree.


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.1

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, 2 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 WL 1866763, *4, 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

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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) (internal citations omitted).


Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion. 42 U.S.C. § 2000e-2(a)(1). " Religion" is defined as " all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's ... religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). To establish a prima facie case of religious discrimination, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she...

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