Ways v. City of Lincoln, CV87-L-30.

Decision Date17 June 1988
Docket NumberNo. CV87-L-30.,CV87-L-30.
Citation705 F. Supp. 1420
PartiesJohn 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.
CourtU.S. District Court — District of Nebraska

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 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 harassment by co-workers. DeGrace v. Rumsfeld, 614 F.2d 796, 803 (1st Cir.1980). Once an employer has knowledge of a racially hostile atmosphere in a place of employment, the employer has an affirmative duty to take reasonable steps to eliminate that hostile atmosphere. Snell v. Suffolk County, 782 F.2d 1094 (2nd Cir.1986). A working environment that is overrun by racial antagonism constitutes a Title VII violation. Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir.1983). The greater weight of the evidence supports the finding that the plaintiff has suffered from such an environment that has been allowed to exist without reasonable steps to eliminate it by the City of Lincoln or the Lincoln Police Department. I do not find that a monetary judgment against any of the individual defendants is warranted. While it has essentially been the duty of Chief Leitner to remedy the problem since his assumption of office in 1978, the environment existed before he arrived and he has taken some remedial steps. The other individual defendants are not sufficiently responsible for the hostile environment to permit the award of monetary damages against them.

The jury awarded the plaintiff $35,000 against the Lincoln Police Department. I agree that the plaintiff is entitled to a monetary judgment against the Lincoln Police Department, but I also find that the plaintiff is entitled to a monetary judgment against the City of Lincoln — that is, allowance of one such amount, not two. I accept the jury's evaluation of the damage suffered by the plaintiff and find that that damage was suffered as the result of the hostile work environment. Additional remedial measures are in order, however, because the hostility of the environment, although reduced by the filing of this lawsuit, needs to be directly addressed and I conclude that that can best be done through an injunction.

III. DISCIPLINARY ACTIONS

Incidents of discipline of Ways were put into evidence, including a reprimand regarding a report of a bomb, the refusal to allow Ways requested sick leave, and a suspension from duty for 40 hours without pay for jailing a young man without getting approval of a duty officer for the young man's refusal to sign a citation. Fair inferences could be drawn that these actions or some of them were in part racially inspired. The defendants, however, introduced evidence that each of the actions was for a legitimate nondiscriminatory reason, a violation of a department policy known to the plaintiff, and the plaintiff has not shown those reasons to be pretextual. The plaintiff has not sustained his burden of proving by the greater weight of the evidence that any of the incidents was for racial reasons, in whole or in part. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67...

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  • Ways v. City of Lincoln, s. 88-2081
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 3, 1989
    ...doll called out that Ways had better enjoy it because it was the nearest he would get to a white woman." Ways v. City of Lincoln, et al., 705 F.Supp. 1420, 1421 (D.Neb.1988). More often, Ways was subjected to jokes, comments and actions derogatory to blacks and American Indians in general. ......

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