DeAngelis v. El Paso Mun. Police Officers Ass'n

• Decision Date: 10 May 1995
• Docket Number: No. 93-8700,93-8700
• Citation: 51 F.3d 591
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1250, 66 Empl. Prac. Dec. P 43,531, 63 USLW 2728 Sylvia DeANGELIS, Plaintiff-Appellee, v. EL PASO MUNICIPAL POLICE OFFICERS ASSOCIATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 591

51 F.3d 591

67 Fair Empl.Prac.Cas. (BNA) 1250,

66 Empl. Prac. Dec. P 43,531, 63 USLW 2728

Sylvia DeANGELIS, Plaintiff-Appellee, v. EL PASO MUNICIPAL POLICE OFFICERS ASSOCIATION, Defendant-Appellant.

No. 93-8700.

United States Court of Appeals, Fifth Circuit.

May 10, 1995.

Christian J. Gros, San Antonio, TX, Joseph R. Messa, for appellant.

Thomas A. Spieczny, El Paso, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JONES and DeMOSS, Circuit Judges, and SHAW ^*, District Judge.

EDITH H. JONES, Circuit Judge:

The principal issue in this case is whether a jury verdict for the plaintiff in a Title VII sexual harassment case may be supported only by evidence of a few written jibes, at women police officers generally and the plaintiff in particular, published in the police association newsletter. We hold that such evidence, rife as it is with first amendment overtones, will not suffice and so reverse the judgment.

BACKGROUND

After six years on duty with the El Paso Police Department as a patrol officer and detective, Sylvia DeAngelis became the first female sergeant in October, 1987. Within a few months of promotion, she was satirized by an anonymous writer in The Silver Badge, a newsletter of the El Paso Municipal Police Officers Association (the Association), an organization similar to a police officers union. ¹ The author's nom de plume was R.U. Withmi. He wrote as a patrol officer with nearly 20 years' experience "combatin' crime." His monthly column criticized, in an irreverent and colloquial manner, groups including superior officers, "rear echelon" officers ("REMF's"), bureaucrats, and "weenie boys." R.U. Withmi lashed out at changing times in the police department while longing for the good old days. The incursion of females into the department, a quintessential element of modernization, did not escape his sharp pen.

This lawsuit arises from several of his columns, published between November 1987 and February 1990, that derogatorily referred to policewomen. About a thousand copies of The Silver Badge were printed monthly and distributed at a minimum to 700 police officer members of the Association.

Publication of the columns angered more than two dozen female police officers, who asked the police chief and officers of the Association to stifle R.U. Withmi. The police chief, despite his discomfiture, had no direct authority over the Association, and the Association, after a vote of the membership in early 1990, rejected their leaders' advice to require that R.U. Withmi unmask himself.

Peculiarly, although specifically offered the opportunity, none of the policewomen ever chose to write a response to R.U. Withmi for The Silver Badge. ² The record mentions no boycott of the Association or its newsletter, no challenge to the officers' election. Sergeant DeAngelis' Title VII claims are before this court.

DISCUSSION

DeAngelis secured jury findings that (1) R.U. Withmi's articles subjected her to harassment, creating a hostile and sexually abusive working environment, and (2) a reference in one of the columns to her "E-I-E-I-O" [EEOC] complaint amounted to retaliation for exercise of her Title VII rights. The jury awarded Sergeant DeAngelis $10,000 in compensatory damages and $50,000 punitive damages. ³

The Association has appealed on several grounds, the most compelling of which are sufficiency of evidence of liability and the assertion that, if this verdict is upheld, the First Amendment free speech rights of R.U. Withmi have been abridged. These issues must be discussed together.

In reviewing a jury verdict, we abide by the standard set forth in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc). We consider the evidence in the light most favorable to the party defending the verdict, and we will reverse only when reasonable minds in the exercise of impartial judgment could not have arrived at that verdict. MacArthur v. Univ. of Texas Health Center at Tyler, 45 F.3d 890, 896 (5th Cir.1995).

To establish an actionable claim of sexual harassment in the workplace, a plaintiff must demonstrate:

(1) That she belongs to protected class; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment affected a "term, condition or privilege of employment"; and (5) that the employer either knew or should have known of the harassment and failed to take prompt remedial action.

See Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987). The Supreme Court recently affirmed that sexually discriminatory verbal intimidation, ridicule and insults may be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment that violates Title VII. Harris v. Forklift Systems, Inc., --- U.S. ----, ----, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)).

Nash v. Electrospace System, Inc., 9 F.3d 401, 403 (5th Cir.1993).

A claim for a sexually hostile working environment is not a trivial matter. Its purpose is to level the playing field for women who work by preventing others from impairing their ability to compete on an equal basis with men. One must always bear this ultimate goal in mind. A hostile environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace. Any lesser standard of liability, couched in terms of conduct that sporadically wounds or offends but does not hinder a female employee's performance, would not serve the goal of equality. In fact, a less onerous standard of liability would attempt to insulate women from everyday insults as if they remained models of Victorian reticence. A lesser standard of liability would mandate not equality but preference for women: it would create incentives for employers to bend over backwards in women's favor for fear of lawsuits. Now that most American women are working outside the home, in a broad range of occupations and with ever-increasing responsibility, it seems perverse to claim that they need the protection of a preferential standard. The careful, heightened phrasing of a hostile environment claim, enforceable where working conditions have palpably deteriorated because of sexually hostile conduct, aims to enforce equality, not preference.

To test whether Sergeant DeAngelis' evidence satisfied the standard of liability, we return to the separate criteria for a hostile environment claim: (1) Sexually discriminatory intimidation, ridicule and insults, which are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment and (4) create an abusive working environment. Harris, --- U.S. at ----, 114 S.Ct. at 370 (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Harris added:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview.

Id. In determining whether a working environment is "hostile" or "abusive", all the circumstances must be considered, including

the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Id. at ----, 114 S.Ct. at 371. The test is an objective one, not a standard of offense to a "reasonable woman." See Harris, --- U.S. at ----, 114 S.Ct. at 370.

Lacking any other evidence of sexual discrimination or harassment, DeAngelis stakes her case on R.U. Withmi's columns and their effects. We will summarize each column that was offered at trial as critical of Sergeant DeAngelis or women police officers in general. Each column bore this disclaimer:

R.U. Withmi is a senior level patrol officer whose article appears monthly. It does not represent the official position of the EPMPOA [the Association] but presents a humorous satirical view by the author. Written comments to the editor are welcome.

One must infer that because the R.U. Withmi column appeared monthly in The Silver Badge, and the challenged articles appeared over a course of 30 months, none of the twenty articles not offered in evidence at the trial court was hostile to women.

1. December 1987--Well-low and BE-hold!!, the Holiday Season is here! It seems like just the other day we got a new Chief and them 87 low bid police cars had just arrived. As the new year fast approaches these here parts and we all git just a little older, I has begun to get a lil' nostalgic in my old age a remeberin' when things was a little different. It is my opinion that we here are in a new age of patrolmen, patrolwoman, defectowoman, sergeant dingy woman and now thanks to the appeal process, patrol other! I just think a people are changing and we are getting a new generation of patrolmen in as few as five years! I remember the good ol' days when finding the criminal was more important to the patrolmen then keeping your hair in place! I wonder how far back you remember? I remember these things, let's see if you do ... Remember when? ... Do you remember when there were no women workin' the streets? (Ah yes, those were the good days! ... Sorry gals, truth hurts!) ...

2. February 1988--I never thought I would make the newspaper El Paso Rag, an E-I-E-I-O complaint or be blasted out of my socks by our Presidente himself!

3. March 1988-- ... only REAL MEN wear them ole wool pants! You don't see any of the "jefes" with a bottle of hair spray on their Sam Browns! ... And I don't EVEN want to start up against the "...