895 F.2d 1469 (3rd Cir. 1990), 89-1207, Andrews v. City of Philadelphia

Docket Nº:89-1207 and 89-1302.
Citation:895 F.2d 1469
Party Name:5 Indiv.Empl.Rts.Cas. 1471 Priscilla Kelsey ANDREWS and Debra Ann Conn, Appellants in No. 89-1302, v. CITY OF PHILADELPHIA and Wilson W. Goode, individually and in his capacity as Mayor, City of Philadelphia, and Kevin M. Tucker, individually and in his capacity as Police Commissioner, and Orville W. Jones, individually and in his capacity as Perso
Case Date:February 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1469

895 F.2d 1469 (3rd Cir. 1990)

5 Indiv.Empl.Rts.Cas. 1471

Priscilla Kelsey ANDREWS and Debra Ann Conn, Appellants in No. 89-1302,


CITY OF PHILADELPHIA and Wilson W. Goode, individually and

in his capacity as Mayor, City of Philadelphia, and Kevin M.

Tucker, individually and in his capacity as Police

Commissioner, and Orville W. Jones, individually and in his

capacity as Personnel Director, and Joseph Liciardello,

individually and in his capacity as Captain, Accident

Investigation Division, and John Doe, individually and in

his capacity as a Philadelphia Police Officer Assigned to

Accident Investigation Division, and Frank Doyle,

individually and in his capacity as Sergeant, Accident

Investigation Division.

Appeal of Frank DOYLE and Joseph Liciardello.

Nos. 89-1207 and 89-1302.

United States Court of Appeals, Third Circuit

February 8, 1990

Argued Sept. 7, 1989.

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[Copyrighted Material Omitted]

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Jane R. Goldberg (argued), Joyce S. Mozenter, Mozenter, Molloy & Durst, Pamela Cohen, Philadelphia, Pa., for appellants in No. 89-1302.

Richard G. Freeman (argued), Deputy City Solicitor, Philadelphia, Pa., for appellants in No. 89-1207.

Before BECKER, COWEN, and ROSENN, Circuit Judges.


ROSENN, Circuit Judge.

This appeal presents us with several perturbing issues involving the newly emerging jurisprudence concerning sexual harassment. We must not only enunciate standards to be applied in section 1983 (42 U.S.C. Sec. 1983) claims for sexual harassment and Title VII (42 U.S.C. Sec. 2000e et seq) claims based upon a hostile work environment, but also determine how jury findings in the section 1983 claim affect the Title VII claim. Additionally, we are asked to consider concepts of qualified immunity under section 1983 and municipal liability under both section 1983 and Title VII. Finally, we must also evaluate the tort of intentional infliction of emotional distress under Pennsylvania law.

Plaintiffs, Priscilla Kelsey Andrews (Andrews) and Debra Ann Conn (Conn), were members of the Accident Investigation Division (AID) of the Philadelphia Police Department. Both claim that because of their sex they were harassed by their fellow workers and supervisors. The harassment allegedly included abusive language, destruction of property and work product, anonymous telephone calls and, eventually, physical injury to Andrews. They brought suit on a host of legal theories in the United States District Court for the Eastern District of Pennsylvania against the City of Philadelphia, Mayor Wilson Goode, Police Commissioner Kevin Tucker, Director of Police Personnel Orville Jones, AID Commanding Officer Captain Joseph Liciardello, Andrews' direct supervisor, Sergeant Frank Doyle, and a John Doe defendant.

The section 1983 claims and the intentional infliction of emotional distress claims were tried to a jury and the Title VII claims to the bench. The jury found in favor of Andrews and against Philadelphia, Liciardello and Doyle on Andrews' section 1983 claim. The jury found in favor of Conn against Philadelphia and Liciardello

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on Conn's section 1983 claims. The jury found in favor of Conn against Liciardello and in favor of Andrews against Liciardello and Doyle on the claims for intentional infliction of emotional distress. The court in separate findings entered immediately after the jury verdict found for the defendant Philadelphia on the Title VII claims.

Following the verdicts, the plaintiffs moved pursuant to Federal Rule of Civil Procedure 59(e) to have the court alter its judgment to make it consistent with the jury's verdict and the defendants moved for judgment notwithstanding the verdict (n.o.v.) on the intentional infliction claims and the section 1983 claims against the City, Liciardello and Doyle. The court denied the plaintiffs' motion, as well as the defendants' motion, with respect to the section 1983 judgments against Liciardello and Doyle but granted the defendants' motion and entered judgment n.o.v. in favor of the defendants on the intentional infliction of emotional distress claims and the section 1983 claim against the City.

Plaintiffs appeal the judgments n.o.v., arguing that there was sufficient evidence to support the jury verdicts. They also appeal the Title VII judgment, arguing that the trial judge misapplied the law and failed to reconcile his decision with the verdict of the jury. Finally, they appeal the earlier entry of a directed verdict in favor of the John Doe defendant. The defendants cross-appeal, arguing that Liciardello and Doyle were protected by their qualified immunity and, thus, judgments n.o.v. should have been granted in the 1983 claims against them. We affirm in part and vacate in part.


AID is an extremely busy division of the Philadelphia Police Department which investigates vehicular accidents involving property or personal injury. Officers in AID are expected to investigate thoroughly an accident and file a report describing the accident and its causes.

AID is broken down into several squads. Each squad operates independently and works different shifts, under the authority of separate sergeants, though all are under the ultimate authority of the same commanding officer. At her request, the Police Department transferred plaintiff Andrews to AID in February 1986 and assigned her to the squad under the direct supervision of defendant Doyle. Plaintiff Conn was assigned to a different squad in the Division in May 1986. In June 1986 Captain Liciardello became the Commanding Officer of the Division. When the plaintiffs came to AID, males dominated the Division and each plaintiff was the only woman in her squad. Prior to this litigation, they had never met.

According to the plaintiffs, the AID squadroom was charged with sexism. They both claim that women regularly were referred to in an offensive and obscene manner, and that they personally were addressed by the obscenities. Other women in the Division also confirmed the male use of obscenities in referring to women. Although there was evidence that such language was commonplace in police quarters, there was also testimony that such language was not ordinary, and Conn, a twelve-year police veteran, went as far as to say that she "had never been called some of the names that [she] was called in AID."

There was also evidence of pornographic pictures of women displayed in the locker room on the inside of a locker which most often was kept open. Plaintiffs contend that the language and the pictures embarrassed, humiliated and harassed them. Other female officers at AID expressed similar reactions to the pictures and language. The office setup of AID enabled both Liciardello and Doyle to see the pictures and hear the language. This environment led Sergeant Connie Hurst, a female police officer who was at AID during 1986 and 1987, to conclude that AID "was one of the sexist, racist units in the Police Department."

  1. Andrews

    Andrews, a black female, joined the police force in 1980 and went on active duty as a patrol officer in February 1982 in the

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    Fourth Police District. During her time in the Fourth District she consistently received satisfactory performance ratings, though her supervisor says that she required more direct supervision than other members of the squad. Toward the end of her assignment she lodged a complaint against her supervisor for racial discrimination. The charges were ultimately found to be groundless. In February 1986, pursuant to a transfer application, she was transferred into AID.

    Andrews had some difficulty with the work at AID, often making mistakes in conducting investigations and filing reports. Sergeant Doyle found himself compelled to send many case reports back to her for extensive corrections. The parties differ over how severe the mistakes were, with Andrews claiming that they were simply mistakes of inexperience and later harassment, and the defendants claiming that the mistakes were extreme. Andrews also had organizational problems; her files were often disorganized and she often misplaced, forgot, and lost police department equipment. On two instances she even misplaced her weapon. Similarly, against division policy, she on one occasion mistakenly brought six case files home with her on vacation. Nonetheless, she received overall performance evaluations of satisfactory in both of her yearly evaluations at AID, though in her 1987 evaluation, AID graded her unsatisfactory in the categories of quality of work, work habits, and promotional potential.

    One particular form of difficulty which plagued Andrews was the loss of her case files. There is no direct evidence of how or why those cases were lost. Andrews contends that her coworkers stole or hid her cases in an attempt to harass her. The defendants claim that she lost the files herself as a result of her carelessness and disorganization. Because she had to reconstruct the lost cases, Andrews fell increasingly behind in her work.

    The Division, in an attempt to assist Andrews, gave her additional training and guidance. Sergeant Doyle designed a flow chart to track her cases. Lieutenant Viola Mitchell, a black female superior officer in AID, also gave her a great deal of assistance. Mitchell advised Andrews to keep all of her notes in steno pads and to retain duplicates so if any additional files disappeared it would take less effort to reproduce the report. After these steps were taken the loss of case files abated, but further destruction of Andrews' work product followed. She claims that one steno pad in which she had been taking notes disappeared from the top of her desk, and one after she had given it to Sergeant Doyle during an investigation. Additionally, several cases which Doyle had returned to her for correction were scribbled on while they were on her desk. Later, seven...

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