Dwyer v. Smith
| Decision Date | 03 February 1989 |
| Docket Number | No. 87-2077,87-2077 |
| Citation | 867 F.2d 184 |
| Parties | 48 Fair Empl.Prac.Cas. 1886, 49 Empl. Prac. Dec. P 38,905, 57 USLW 2507 Stephanie G. DWYER, Plaintiff-Appellant, v. Loyd W. SMITH; Marcus Lipp; Herbert Peacher; N.C. Durham; Thomas A. Akers; James R. Robertson; City of Fairfax, Virginia; William O'Donnell, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jack L. Gould, Fairfax, Va., for plaintiff-appellant.
Joseph Doane Roberts (Kevin L. Locklin, Slenker, Brandt, Jennings and Johnston, Merrifield, Va., Joyce A. Naumann Massey, Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, Washington, D.C., on brief), for defendants-appellees.
Before RUSSELL and PHILLIPS, Circuit Judges, and KNAPP, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.
Stephanie G. Dwyer, a former police officer with the Fairfax City Police Department in Fairfax, Virginia, appeals a district court judgment rejecting a variety of federal and pendent state claims, principally of sex discrimination and sexual harassment, brought against her public employer. Finding no reversible error among the great number assigned, we affirm.
Dwyer was hired as a Fairfax City police officer in December 1981 and served in that capacity until her termination in May 1986. During her first few years with the department, Dwyer received various commendations for her work and above average evaluations from her superiors. Toward the latter part of her employment, however, Dwyer allegedly engaged in several instances of misconduct that impugned her veracity and led to her dismissal from the department. Dwyer alleges that her difficulties began when she started complaining about sexual harassment by male police officers and protesting department policy of requiring all police officers, male and female, to qualify with shotguns in a manner potentially more injurious to women. The defendants allege that Dwyer only initiated this action when the department rejected her offer to stop complaining about the sexual harassment in exchange for shotgun qualification.
At the close of Dwyer's case, the United States District Court for the Eastern District of Virginia dismissed Dwyer's Sec. 1983 claims for violations of her first and fourteenth amendment rights; directed verdict for the defendants on Dwyer's pendent state claims of intentional infliction of emotional distress, defamation, and a violation of Virginia's insulting words statute, Va.Code Ann. Sec. 8.01-45; and discharged the jury. At the close of trial, the court entered judgment for the defendants on Dwyer's remaining Title VII claims of sexual harassment, disparate impact, disparate treatment and retaliation. This appeal followed.
In Title VII actions, a district court's factual determinations are governed by Rule 52(a)'s clearly erroneous standard even if they resolve the ultimate issue of the action--such as, whether there was discrimination, sexual harassment, or discriminatory intent. Pullman-Standard v. Swint, 456 U.S. 273, 285-90, 102 S.Ct. 1781, 1788-91, 72 L.Ed.2d 66 (1982); Moore v. City of Charlotte, 754 F.2d 1100, 1104 (4th Cir.1985). Therefore, we may only reverse the district court's findings in the present case if we conclude that the ultimate determinations " 'were induced by an erroneous view of the controlling legal standard; or are not supported by substantial evidence; or were made without properly taking into account substantial evidence to the contrary or are against the clear weight of the evidence considered as a whole.' " Moore, 754 F.2d at 1104 (quoting Miller v. Mercy Hosp., 720 F.2d 356, 361 (4th Cir.1983)).
Since Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), there is no doubt that a plaintiff has a cause of action for sexual harassment under Title VII when discrimination based on sex has created a hostile or abusive work environment. We have held that such an action involves two steps:
First, the plaintiff must make a prima facie showing that sexually harassing actions took place, and if this is done, the employer may rebut the showing either directly, by proving that the events did not take place, or indirectly, by showing that they were isolated or genuinely trivial. Second, the plaintiff must show that the employer knew or should have known of the harassment, and took no effectual action to correct the situation. This showing can also be rebutted by the employer directly, or by pointing to prompt remedial action reasonably calculated to end the harassment.
Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983).
The district court rejected Dwyer's Title VII claim of sexual harassment, finding that she had failed to present any evidence of sexual harassment that altered the conditions of her employment and created an abusive working environment. In light of the sharply conflicting evidence in the record, the court's determination is certainly "plausible" and withstands Dwyer's attack on appeal. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
Dwyer contends that since she was assigned to defendant Robertson's squad in late 1982 or early 1983, her work life has been rife with innuendo, disparagement, humiliation and insinuation--in short, sexual harassment. She claims that she complained directly to Sgt. Robertson but he took no action; in fact, according to Dwyer, Robertson was the "ring leader" who encouraged similar comments and attitudes toward her by the men on the squad. Dwyer further claims that when she was assigned to different squads, her situation improved, but Robertson still used every opportunity to harass her. She claims that he and the men on his squad placed pornographic material in her station mailbox and jokingly asked her about what she had received. According to Dwyer, Robertson also repeatedly accused Dwyer of having sexual relations with other officers.
Dwyer also complains that the other men on the force often engaged in gratuitously graphic conversations about victims of sex crimes and drove by her home to see if she had any male visitors. Additionally, she charges that women were generally referred to in degrading terms and, on one occasion, several officers engaged in a graphic description of sexual behavior while Dwyer was riding in the back seat of a police cruiser. She claims that she repeatedly asked the men to halt their behavior and reported the occurrences to Robertson and other officers in charge to no avail.
The defendants present a very different picture of the workplace. They claim that Dwyer received various commendations and standard evaluations from Sgt. Robertson during the time he was allegedly harassing her. They also claim that she often engaged in the "dirty talk" or use of profanity and only complained to her superiors on two occasions: on November 4, 1984, when she received a pornographic mailing and on November 7, 1985, after she was asked to respond to several citizen complaints about her work. According to the defendants, both of Dwyer's complaints spurred some type of investigation. After the first, the supervisor who received the complaint could not determine who placed the mail in her folder but told both his squad and the squad that worked the shift before his to halt such behavior. After the second complaint, an internal affairs investigation was conducted but concluded that Dwyer's accusations were unfounded.
During the second investigation, Dwyer gave a recorded statement in which she did not indicate that she reported the various incidents to any supervisors. In fact, the transcript shows that she did not contend at that point that Robertson engaged in any suggestive behavior--only that he treated her like a "problem child." In the same report, Dwyer admitted that she could not recall any of the men who engaged in the sexually explicit conversations but added that most of the men did not use as much discretion as she thought they should.
At trial, however, Dwyer claimed that most of the incidents relevant to her action occurred after her recorded statement. She testified that Robertson referred to ex-female police officers as cowards and homosexuals, that he said that one female officer missed work each month during her menstrual period, and that the men under Robertson's direct supervision taunted her. Also at trial, Dwyer's own witness, a female dispatcher, testified that she received immediate, corrective action when she complained about seeing a single dirty picture and that Sgt. Robertson was a "perfect Southern Gentleman."
From this evidence, the court found that no sexual language was ever directed at Dwyer; that only one of the mailings could be considered pornographic; that Dwyer had failed to prove the origin of any of the mailings; that one of the pieces of "art work" about which Dwyer complained was actually placed in the stationhouse by another female employee; and that two female police officers testified that sexual harassment did not exist in the Fairfax City Police Department. The court's final conclusion was that Dwyer failed to establish a prima facie claim of sexual harassment.
The only credible evidence that I find is that perhaps on occasion there has been inappropriate language and inappropriate references made to sex, but not harassment. And I think that the fact that there was no complaint made by [Dwyer], no testimony of any incidences [sic], no complaint made to anyone prior to her being on the force for the number of years that she had, belies the fact that this was going on.
These findings and the district court's ultimate conclusion that Dwyer failed to establish a prima facie case of sexual harassment are not clearly erroneous within the meaning of Rule 52(a).
[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or...
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