Keenan v. City of Philadelphia

• Citation: 983 F.2d 459
• Decision Date: 21 January 1993
• Docket Number: No. 91-1306,91-1306
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 719, 60 Empl. Prac. Dec. P 41,950, 61 USLW 2395 Carol KEENAN and Lawrence Gerrard and Ernest Gilbert and Walter Smith and Daniel Rosenstein v. CITY OF PHILADELPHIA and Philadelphia Police Department and Kevin Tucker and James Gallagher and Roy Stoner and Robert Grasso and Victor Marcone and Ralph J. Teti, Esquire, Kevin Tucker, James Gallagher, Roy Stoner, City of Philadelphia, Philadelphia Police Department and Robert Grasso, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 459

983 F.2d 459

60 Fair Empl.Prac.Cas. (BNA) 719,

60 Empl. Prac. Dec. P 41,950, 61 USLW 2395

Carol KEENAN and Lawrence Gerrard and Ernest Gilbert and Walter Smith and Daniel Rosenstein v. CITY OF PHILADELPHIA and Philadelphia Police Department and Kevin Tucker and James Gallagher and Roy Stoner and Robert Grasso and Victor Marcone and Ralph J. Teti, Esquire Kevin Tucker, James Gallagher, Roy Stoner, City of Philadelphia, Philadelphia Police Department and Robert Grasso, Appellants.

No. 91-1306.

United States Court of Appeals Third Circuit.

Argued Oct. 1, 1991.

Decided Dec. 17, 1992.

Sur Petition for Rehearing Jan. 21, 1993.

Susan Shinkman (argued), City Solicitor of Philadelphia, Philadelphia, PA, for appellants.

Richard A. Sprague (argued), Sprague & Sprague, Philadelphia, PA, for appellees.

Before: BECKER, HUTCHINSON and HIGGINBOTHAM, Circuit Judges.

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

In this appeal, defendants challenge the district court's March 19, 1991 order dismissing in part their motions for judgment notwithstanding the verdict and/or remittitur and/or new trial and challenge the amount of attorneys' fees and costs. The plaintiffs in this case alleged that their equal protection and free speech and association rights had been infringed upon and that they were unlawfully transferred from their posts in the Homicide Unit of the Philadelphia Police Department in violation of 42 U.S.C. § 1983. A jury awarded the plaintiffs $640,000 in compensatory damages and $1,800,000 in punitive damages. The plaintiffs accepted the district court's remittitur of the punitive damages award to $1,200,000. The district court entered a judgment against the defendants and awarded attorneys' fees and costs of $1,127,657.90.

We will affirm the compensatory damages award assessed against the individual defendants and the City of Philadelphia. We will affirm in part and reverse in part the punitive damages award. Finally, we will vacate the award of attorneys' fees and costs and remand the case to the district court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL BACKGROUND

Our nation has committed itself, through its Constitution and through substantial civil rights legislation, to prohibit unlawful gender discrimination. Nonetheless, the facts of this case demonstrate that even within a city police department, this prohibition has been disregarded.

All five plaintiffs in this case worked in the Homicide Unit of the Philadelphia Police Department. Detective Carol Keenan (Keenan) began working in the Homicide Unit in June 1985. She became the regular partner of Detective Lawrence Gerrard (Gerrard) and also worked with another detective, Ernest Gilbert (Gilbert). All three worked under the supervision of Sergeant Daniel Rosenstein (Rosenstein). Detective Walter Smith (Smith) was a representative of the Fraternal Order of Police (FOP), the police union.

All four individual defendants held various positions in the command structure of the Philadelphia Police Department. In June 1986, Captain Robert Grasso (Grasso) assumed command of the Homicide Unit. Grasso's immediate superior was Inspector Roy Stoner (Stoner). In turn, Stoner's superior was Chief Inspector James Gallagher (Gallagher). At the apex of this chain of command, Gallagher's superior was the Police Commissioner, Kevin Tucker (Tucker).

Friction developed between Captain Grasso and Detective Keenan as Grasso closely monitored Keenan's activities. One of Keenan's colleagues, Rosenstein, testified that Grasso was like "a heat-seeking missile: He just seemed to be homed right at Carol [Keenan] and wouldn't get off unless he could find the heat."

As we detail more fully infra, Grasso discriminated against Keenan in several specific instances: he prevented her from going on overnight trips, from taking a witness protection detail, and from going on a transportation detail. Gerrard, Gilbert, Rosenstein, and Smith supported Keenan in her complaints against this discrimination. Stoner, Gallagher, and, to a lesser extent, Tucker all had knowledge of the situation in the Homicide Unit.

On June 5, 1987, Keenan, Gerrard, Gilbert, and Smith were transferred from the Homicide Unit to detective units around Philadelphia. Rosenstein, who was on special assignment away from the Homicide Unit from June 1987 to March 1988, was transferred out of the Homicide Unit to uniformed patrol upon his return on April 1, 1988. The transfers of Keenan, Gerrard, Gilbert, and Smith were initiated by Captain Grasso and signed and approved by Grasso, Inspector Stoner, Chief Inspector Gallagher, and Police Commissioner Tucker. Grasso initially recommended the transfer of Smith in November 1986 and of Gilbert and Gerrard in December 1986. He initially recommended the transfers for Keenan and Rosenstein on May 12, 1987. Grasso sent Police Commissioner Tucker memoranda with the transfer requests for Rosenstein, Keenan, Gerrard, Gilbert and Smith on May 15, 1987. The transfers were approved by Inspector Stoner on May 15, 1987 and by Chief Inspector Gallagher on May 18, 1987. Police Commissioner Tucker approved the transfers at some later point.

After the transfers, in March 1988, the Internal Affairs Division (IAD) of the Philadelphia Police Department conducted investigations of Keenan, Gerrard, Gilbert, and Smith on the basis of anonymous letters. We note for the record that evidence was presented that these investigations were selective and in retaliation for plaintiffs' formal complaints challenging their transfers. ¹

On September 15, 1988, Keenan, Gerrard, Gilbert, Smith, and Rosenstein filed a complaint in district court naming as defendants the City of Philadelphia, Tucker, Gallagher, Stoner, Grasso, Lieutenant Victor Marcone (Marcone), and Deputy City Solicitor Ralph Teti (Teti). Plaintiffs alleged in their complaint that defendants had acted to discriminate and retaliate against them. On March 3, 1989, the district court dismissed the complaint as to defendants Marcone and Teti.

The matter went to trial on November 22, 1989. On January 16, 1990, the jury returned a verdict in favor of plaintiffs, assessing $2.44 million in damages: $640,000 in compensatory damages and $1,800,000 in punitive damages. ² All defendants were liable for the compensatory damages and all but the City of Philadelphia were assessed punitive damages. ³ On March 19, 1991, the district court denied defendants' motions for a new trial and for judgment n.o.v. but granted a remittitur of one third of the punitive damages. ⁴ The district court also awarded plaintiffs attorneys fees and costs of $1,127,657.90. Plaintiffs accepted the punitive damages award as remitted. Defendants filed their timely appeal on April 18, 1991. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

II. LIABILITY

Defendants present several issues on appeal. While we have considered them all, ⁵ we will address in this section whether the evidence was sufficient to support the equal protection and First Amendment claims, whether municipal liability was proper, and whether prejudicial error was committed by the trial judge in his comments on the witnesses and the evidence. We affirm the district court on these issues.

A. Sufficiency of Evidence ⁶

The standard of review of a denial of a motion for judgment n.o.v. on a sufficiency of evidence argument is limited. " 'Because a jury determined the issue, our scope of review is limited to examining whether there is sufficient evidence to support the verdict, drawing all reasonable inferences in favor of the verdict winner.' " Kelly v. Matlack, 903 F.2d 978, 981 (3d Cir.1990) (quoting Blum v. Witco Chemical Corp., 829 F.2d 367, 372 (3d Cir.1987)). Denial of the motion must be affirmed "unless the record is 'critically deficient of that minimum of evidence from which the jury might reasonably afford relief.' " Link v. Mercedes-Benz, 788 F.2d 918, 921 (3d Cir.1986) (citation omitted).

1. Equal Protection

As we have recently stated:

To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. They must demonstrate that they "receiv[ed] different treatment from that received by other individuals similarly situated." Specifically to prove sexual discrimination, a plaintiff must show that any disparate treatment was based upon her gender.

Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990) (citations omitted).

There is easily sufficient evidence in the record for a reasonable jury to have concluded that Captain Grasso treated Keenan differently from other individuals similarly situated and did so based upon her gender. ⁷ As the following incidents amply demonstrate, Grasso discriminated against Keenan in his running of the affairs of the Homicide Unit.

In August 1986, Rosenstein originally assigned Gerrard and Keenan to protect and debrief a female witness. The assignment entailed overnight protection in a hotel. Rosenstein made the assignment on the basis of Gerrard's expertise in the field of the investigation and on the basis of Keenan's skill in interviewing and the rapport she had previously developed with the witness to be protected and debriefed. However, Grasso refused to allow Keenan to go on this overnight witness protection detail because "she's got a child at home." Keenan had no child, although an eighteen-year-old foreign exchange student and Keenan's adult cousin were living with Keenan at the time. Grasso replaced Keenan with a male detective, Frank O'Brien, who had three minor children at home. The other male detective on the assignment, Gerrard, had four minor children at home.

In November 1986, Grasso refused to allow Keenan and Gerrard to go on a trip to Atlantic City to retrieve a murder weapon and talk to a witness who had been identified as possessing important...