Ways v. City of Lincoln, No. CV87-L-30.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: John C. McQuinn, Asst. City Atty., Lincoln, Neb., for defendants
• Citation: 705 F. Supp. 1420
• Decision Date: 17 June 1988
• Docket Number: No. CV87-L-30.
• Parties: John WAYS, Sr., Plaintiff, v. CITY OF LINCOLN; City of Lincoln Police Department; Dean Leitner, City of Lincoln Chief of Police; Arthur Bandars; and John Hewitt, Defendants.

705 F. Supp. 1420

John WAYS, Sr., Plaintiff,
v.
CITY OF LINCOLN; City of Lincoln Police Department; Dean Leitner, City of Lincoln Chief of Police; Arthur Bandars; and John Hewitt, Defendants.

No. CV87-L-30.

United States District Court, D. Nebraska.

March 4, 1988.

On Motion For New Trial June 17, 1988.

705 F. Supp. 1421

Beverly Evans Grenier, Lincoln, Neb., for plaintiff.

John C. McQuinn, Asst. City Atty., Lincoln, Neb., for defendants.

MEMORANDUM OF DECISION

URBOM, District Judge.

The jury was given the claim under 42 U.S.C. §§ 1981 and 1983. It is my responsibility, on the other hand, to make findings of fact and conclusions of law about the claim under § 2000e.

The primary issues for resolution are the same in the § 2000e claim as in the §§ 1981 and 1983 claims: has a particular defendant intentionally:

a. established, adopted, endorsed, or allowed to continue employment practices and policies that have resulted in a hostile work environment for the plaintiff because of his race, or

b. subjected the plaintiff to disparate treatment in the matter of disciplinary actions because of his race?

If the answer is yes, the plaintiff is entitled to relief in an appropriate form, that may include declaratory relief, injunctive relief, or, if damages are shown, compensatory and punitive relief.

I. UNCONTROVERTED FACTS

The parties have agreed that the following may be accepted as established facts for purposes of this case only:

John S. Ways, Sr., is a black male citizen of the United States.

John S. Ways, Sr., is employed by the City of Lincoln, Nebraska, as a police officer and has been continuously employed in that capacity since May 3, 1971.

The City of Lincoln, Nebraska, is a municipal corporation, chartered under the laws of the State of Nebraska, and a political subdivision of the State of Nebraska

B. Dean Leitner is employed by the City of Lincoln, Nebraska, as the Chief of Police and has been continuously employed in that capacity since December, 1978; and continuously employed by the City of Lincoln as a police officer since January, 1957.

John Hewitt is employed by the City of Lincoln, Nebraska, as a police captain and has been continuously employed in that capacity since September 25, 1980; and continuously employed by the City of Lincoln as a police officer since February 1, 1963.

Arthur Bandars is currently employed by the City of Lincoln, Nebraska, as a police sergeant since October 1, 1972; and continuously employed by the City of Lincoln as a police officer since May 22, 1967.

The plaintiff filed a charge of alleged discrimination with the Nebraska Equal Opportunity Commission on October 21, 1985.

John S. Ways, Sr., received a right to sue letter from the United States Department of Justice dated October 15, 1986, and filed the complaint herein within ninety (90) days of receipt of said right to sue letter.

II. HOSTILE WORK ENVIRONMENT

Beginning in 1971, when the plaintiff began his employment with the Lincoln Police Department, he has experienced in the workplace racial slurs, jokes, comments, and cartoons. Some were aimed at him directly, such as the incident during his training when an officer in watching Ways practice artificial respiration on a C.P.R. doll called out that Ways had better enjoy it because it was the nearest he would ever get to a white woman. Most racial remarks were derogatory toward blacks generally, such as plaintiff's Exhibit 12, implying that a white man with a long black dildo and a shoe-polished face will be a sure attraction to black women. From time to time racially offensive cartoons appeared on bulletin boards in the police headquarters and substations. Racial jokes about blacks and American Indians were voiced in various places, but most often at lineup and in the locker room.

The frequency of these slurs, remarks, jokes and cartoons is not capable of precise determination, but I find that it was and is sufficient to have caused a hostile work environment, whereby the emotional wellbeing

705 F. Supp. 1422

of the plaintiff as an employee was significantly and adversely affected

Whether the supervisory personnel knew of the hostile work environment is harder to determine. The greater weight of the evidence is that some of the supervisors were bound to have known of it; perhaps some did not know of it. If they did not, they chose to evaluate the environment as non-hostile despite clear indications. I hold that throughout the 1970s and 1980s enough of the command officers knew to require me to say that the City of Lincoln and the Lincoln Police Department knew of the hostile nature of the environment toward blacks.

No discipline has been imposed on anyone at any time for the racial incidents. It can accurately be said that by the greater weight of the evidence the command staff at the Lincoln Police Department did little to alter the atmosphere of unfriendliness toward blacks that has permeated at least the lower ranks of officers. The command staff, however, did not engage personally in speaking or distributing racial derogations.

As early as July, 1983, at the latest, Chief Leitner was notified in writing by the plaintiff and by an unsigned note written by a black officer, Jeffery Brooks, of racial name-calling and slurs occurring within the police departments "all the time" or as "an ongoing problem." They were followed by another written memo from Ways in September, 1983, regarding a poster of three black University of Nebraska football players. The poster had been hung on a bulletin board of a police substation and had been altered so that one was depicted as throwing a "ghetto blaster" radio in place of a football, another was running with a hubcap and, perhaps, a purse in place of a football, and the third as catching a watermelon in place of a football.

Chief Leitner sent the unsigned memo to three of his command officers with instructions to insure that the subordinate command officers and supervisors be advised "that this kind of insensitivity will not be tolerated" and "this conduct is subject to disciplinary action." The ones to whom the instructions were addressed were told to "advise when you have taken appropriate steps." What steps were taken is not shown by the evidence; whether Chief Leitner followed up to be assured that a thorough investigation was made is not shown by the evidence.

Chief Leitner, after the 1983 complaints, instituted a sensitivity training program under the leadership of Sgt. Ervin Portis. The primary result was a three-part video tape of 2½ hours in length, emphasizing how values are developed, and how people perceive others and themselves. Ways was involved in approving the tapes and they were shown to all officers and supervisory personnel. The tapes did not deal in any direct or specific way with racial discrimination or racial slurs, comments, name-calling, jokes or cartoons. Additionally, an attorney, Thom Cope, made presentations on affirmative action. While helpful, the remedial action was not impressively effective on the issue of a racially hostile work environment.

An employer may not stand by and allow an employee to be subjected to a course of racial...