Sharp v. City of Houston

• Decision Date: 12 January 1999
• Docket Number: No. 97-20602,97-20602
• Citation: 164 F.3d 923
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1779, 74 Empl. Prac. Dec. P 45,704 Patrice SHARP, Plaintiff-Appellee, v. CITY OF HOUSTON; et al., Defendants, City of Houston, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

164 F.3d 923

78 Fair Empl.Prac.Cas. (BNA) 1779,

74 Empl. Prac. Dec. P 45,704

Patrice SHARP, Plaintiff-Appellee, v. CITY OF HOUSTON; et al., Defendants, City of Houston, Defendant-Appellant.

No. 97-20602.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 1999.

Rehearing Denied Feb. 10, 1999.

Katherine Louise Butler, Margaret A. Harris, Butler & Harris, Houston, TX, for Plaintiff-Appellee.

Brian Joseph Begle, John J. Hightower, Olson & Olson, Houston, TX, for Defendant-Appellant.

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

Before KING, SMITH and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The City of Houston appeals a judgment entered on a jury verdict in favor of Patrice Sharp, a former Houston Police Department ("HPD") officer, for sexual harassment and retaliation. Finding no reversible error, we affirm.

I.

Sharp was one of about fourteen officers assigned to Mounted Patrol, an elite horse-mounted unit stationed several miles from downtown Houston and police headquarters. Mounted Patrol maintained a strict paramilitary chain of command. There were two sergeants: Edgar Bice, who was Sharp's immediate supervisor, and Jimmy Brown. In 1991, Lieutenant Wayne Hankins was given charge of Mounted Patrol, supervising the two sergeants. He reported to the Special Operations Commander, Captain Dale Brown, who reported to Assistant Chief Dennis Stormski, who reported to Chief Sam Nuchia.

Everyone assigned to Mounted Patrol, including Hankins and the sergeants, was based at Mounted Patrol headquarters. The persons with higher levels of authority, however, were located at HPD headquarters downtown. Because of the unit's physical isolation, and because its duties did not overlap significantly with those of other units, Hankins retained almost absolute control over the unit's operations, subject only to minimal supervision by Captain Brown.

Shortly after Hankins took charge, he and Bice began sexually harassing Sharp, making frequent and demeaning comments about her body, making her the object of lewd jokes and gestures, and generally mistreating her in a manner that was not directed at male officers. On one occasion, Bice announced in front of over one hundred officers and police cadets that Sharp "needs to be in a wet T-shirt contest." He often referred to Sharp's breasts as "headlights" and, on one occasion, as Sharp walked toward him and several other officers, he yelled, "I see those headlights coming!"

When Sharp would bend over to pick up equipment, Bice, while swiveling his hips, would shout out, "hold that position, gal." When Sharp requested time off, Bice often joked that he had keys to a motel room where they could go to "discuss the matter." He often commented that the couch in his office folded out into a bed, and invited her to come in and close the door. He once told Sharp that he would approve her vacation request if she brought back pictures of herself on a nude beach, and once suggested that Sharp and another female officer tell others that they had engaged in a sexual threesome with him.

Hankins not only failed to stop Bice's harassment but engaged in harassment himself. His favorite occasion for harassment was the daily roll call, at which all officers were required to be present. He often told filthy jokes at roll call, which derived their adolescent, shock-value "humor" from their graphic references to female and male sex organs, breasts, excretory functions, masturbation, and various sex acts.

On one occasion, during roll call, Hankins walked up to Sharp and unzipped his pants, placing his crotch inches from her face. He capped off the "joke" by making a reference to oral sex. When Sharp asked job-related questions, on several occasions Hankins grabbed his crotch and shook it, inviting her to "chew on this." Almost universally, Hankins and Bice made their lewd jokes, comments, and gestures in the presence of other officers.

Although Sharp made it apparent that she did not find the jokes or comments funny, and that she did not care for the treatment Hankins and Bice afforded her, she never formally complained to Bice, Hankins, or Captain Brown, nor to HPD's Internal Affairs Division ("IAD") or the mayor's affirmative action office. Because her direct supervisor and his supervisor were the ones harassing her, she believed it would have been useless to complain to them. She was chilled from going to IAD, and she presented evidence that any officer who complained about another officer inevitably suffered for it, socially and professionally.

Hankins's and Bice's misconduct came to light in 1993 only as a result of an internal investigation. ¹ When Sharp was ordered to provide information as part of that inquiry, she told the investigator of Hankins's and Bice's harassment. That investigation soon was upgraded to a full IAD review, and Hankins and Bice ultimately were found to have engaged in sexual harassment and other HPD rules violations.

As soon as the investigation of Bice and Hankins became a full-blown IAD matter, they were transferred from Mounted Patrol pending the investigation's conclusion. Those transfers later became permanent, and both were suspended without pay for ninety days. Sergeant Brown was reprimanded for failing to report the misconduct of which he had been aware and for initially denying that the harassment had occurred.

During and after her participation in the IAD investigation of Bice and Hankins, Sharp was subjected to retaliation by fellow officers for breaking the "code of silence," a custom within HPD of punishing officers who complain of other officers' misconduct or who truthfully corroborate allegations of misconduct. Specifically, Sharp alleged that

(1) she was shunned, badmouthed, and socially ostracized by her fellow officers;

(2) someone removed her name from an overtime sign-up sheet at Mounted Patrol;

(3) her tack was vandalized on one occasion in such a way that it could have caused her injury;

(4) her Mounted Patrol colleagues did not immediately come to her assistance when informed that she had a car accident on the way to work;

(5) a roll call was held outside her presence; and

(6) HPD and IAD did not punish Hankins or Bice, nor the officers who came to their defense against Sharp's allegations, severely enough.

Sharp sought relief from Sergeant Chapman, the new day shift supervisor at Mounted Patrol. She apprised him of the acts of retaliation taken by her colleagues, but he took no corrective action. Although he dutifully reported some of the retaliation to his superiors, he often responded to Sharp by minimizing the retaliation--"laughing it off" and telling her not to worry about it--and he even openly blamed her for embarrassing the unit and for causing strife within it. ²

Nuchia personally spoke with Sharp, expressed his awareness of and sympathy for her situation, and stated that he had changed all the supervision at Mounted Patrol and expected that to remedy the problem. Captain Brown personally attended several Mounted Patrol roll calls, demanded professionalism in response to the investigation, and stated that inappropriate behavior--including acts of retaliation--would not be tolerated.

The retaliation continued, however, and in February 1994, Sharp requested a transfer to an available position in a less prestigious duty station, the Police Academy; her request was granted.

II.

Sharp sued the city, Hankins, and Bice, alleging, inter alia, sexual harassment and retaliation under title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliation for exercise of her First Amendment rights under 42 U.S.C. § 1983. The court granted the city's motion for summary judgment on the title VII retaliation claim. The parties consented to trial before a magistrate judge (whom we refer to as the "court" or the "district court"), and Sharp prevailed on all remaining claims against all defendants.

The jury awarded compensatory damages against the city of $10,000 for harassment and $100,000 for retaliation. Against Bice and Hankins each, the jury awarded $10,000 punitive and $5,000 compensatory damages. ³ At the close of all the evidence, the city moved for judgment as a matter of law ("j.m.l."), and it now challenges the denial of that motion and the final judgment.

III.

The evidence easily suffices to support the verdict that Sharp was sexually harassed and can recover under title VII therefor. ⁴ The substantial issues are whether the city may be held liable for Hankins's and Bice's harassment and whether Sharp can recover for retaliation under § 1983.

A.

We review a denial of j.m.l. de novo. See Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th Cir.1995). We view all evidence and reasonable inferences in favor of the non-movant; if reasonable persons could differ in their interpretation of the evidence, j.m.l. should be denied. Only if the facts and reasonable inferences are such that reasonable jurors could not reach a contrary verdict may the court properly enter a j.m.l. See id.

B.

There are two paths by which Sharp may seek to impute liability to the city for Hankins's and Bice's harassment. The most obvious one is vicarious liability for acts, the commission of which were "aided ... by the existence of the agency relation." See Faragher v. City of Boca Raton, 524 U.S. 775, ----, ----, ----, 118 S.Ct. 2275, 2290, 2292-93, 141 L.Ed.2d 662 (1998) (quoting RESTATEMENT (SECOND) OF AGENCY § 219(2)(d) (1957)); see also Burlington Indus. v. Ellerth, 524 U.S. 742, ----, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998).

This case was tried prior to the articulation of the new standard in Faragher and Burlington, so the court made no factual findings on vicarious liability. The jury was presented with only a negligence theory; because we affirm on that theory, we need not comment extensively on the Supreme Court's most recent pronouncements.

C.

Sharp...