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KELSEY-ANDREWS v. CITY OF PHILADELPHIA

February 16, 1989

PRISCILLA KELSEY-ANDREWS AND DEBRA ANN CONN
v.
CITY OF PHILADELPHIA, ET AL.



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE:

 Plaintiffs filed this action alleging sexual harassment against their employer and various supervisors in the Philadelphia Police Department in violation of Title VII, 42 U.S.C. § 2000(e) et seq., 42 U.S.C. § 1983, and the common law. The § 1983 equal protection claim and the common law claim of intentional infliction of emotional distress were tried to a jury, and the Title VII claim was tried to the bench. After a trial lasting from December 6 to December 19, 1988, the jury returned verdicts in favor of the plaintiffs on their § 1983 and state law claim. *fn1" As to the Title VII claim, the court found in favor of the defendants and against the plaintiffs. See Findings of Fact and Conclusions of Law filed December 19, 1988.

 Presently before the court are numerous motions of the parties. Plaintiffs have moved to amend the court's judgment on the Title VII claim pursuant to Fed. R. Civ. P. 59(e) and have applied for attorneys' fees pursuant to 42 U.S.C. § 1988. Defendants, on the other hand, have moved for judgment notwithstanding the verdict pursuant to Fed. R. Civ. P 50(b) or, in the alternative, amendment of judgment pursuant to Fed. R. Civ. P. 59, and remittitur pursuant to Fed. R. Civ. P. 59.

 I. Background

 A brief description of the parties involved in this action will be helpful. Plaintiff Priscilla Kelsey-Andrews (Kelsey-Andrews) is a thirty year old black female hired by the Philadelphia Police Department in February 1982. In February 1986, she was transferred to the Accident Investigation Division (AID) of the police department. Consisting of approximately fifty officers, AID is responsible for investigating and completing reports on accidents occurring in the city. Kelsey-Andrews' immediate supervisor was defendant Sergeant Frank Doyle, a white male, and as of June 1986 her commanding officer was defendant Captain Joseph Liciardello, also a white male.

 Plaintiff Debra Conn (Conn) is a thirty-five year old white female hired by the police department in August 1977. Conn transferred into AID in May 1986. As of June 1986, her commanding officer was Captain Joseph Liciardello.

 Kelsey-Andrews and Conn brought suit in May 1988 against Liciardello, Doyle, the Mayor of Philadelphia, the Personnel Director of the City of Philadelphia, then-Police Commissioner Kevin Tucker, and various unnamed "John Doe" police officers. The suit sought redress for alleged sexual harassment and discrimination suffered by the plaintiffs while assigned to AID. Incidents directed at Kelsey-Andrews were alleged to have occurred primarily during the period August 1986 to August 1987; incidents directed at Conn were alleged to have occurred primarily during the period February 1987 to August 1987.

 Prior to the start of trial, the court granted the summary judgment motion of the Mayor as against the plaintiffs. See Order filed Dec. 6, 1988. Upon defendants' motion for a directed verdict at the close of plaintiffs' evidence, the court granted the motion as to Kelsey-Andrews' Title VII claim of a racially hostile environment and also granted the motion as to plaintiffs' claims against the Personnel Director and the unnamed police officers. N.T. VI (afternoon) at 2-6. Thus, the case went to the jury with the City, Police Commissioner Tucker, Liciardello, and Doyle as defendants.

 II. Judgment Notwithstanding the Verdict

 On a motion for judgment notwithstanding the verdict, the court must examine the record in the light most favorable to the plaintiff. Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1194 (3d Cir. 1987). The court must determine whether, as a matter of law, the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief. Id. In considering the motion, the court must give the plaintiff the benefit of all reasonable inferences capable of being drawn from the evidence. Blair v. Manhattan Life Insur. Co., 692 F.2d 296, 300 (3d Cir. 1982). The court is not free to weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of the facts for that of the jury. Id.

 III. Claims under 42 U.S.C. § 1983

 On the claims brought under 42 U.S.C. § 1983, the jury returned verdicts for Kelsey-Andrews against defendants City of Philadelphia, Liciardello, and Doyle, and for Conn against defendants City and Liciardello.

 A. Municipal Liability - Defendant City of Philadelphia

 Both plaintiffs claimed that their employer, the City of Philadelphia, violated their rights to equal protection under § 1983. The basis asserted by plaintiffs for municipal liability was that "an unwritten policy of sex discrimination exists within the Philadelphia Police Department" and that Police Department and City supervisory personnel failed to take "effective action" in response to plaintiffs' complaints of sexual harassment. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment at 15; Plaintiffs' Answer to Defendants' Motion for Judgment N.O.V. at 8-9. The jury returned verdicts against the City and in favor of both plaintiffs on their 1983 claims. *fn2"

 The Supreme Court's most recent pronouncement on the parameters of municipal liability is City of St. Louis v. Praprotnik, 485 U.S. 112, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). In that case, the court reiterated several guiding principles of municipal liability under § 1983 as set forth in Pembaur v. Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986):

 
First, . . . municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, that is, acts which the municipality has officially sanctioned or ordered.
 
Second, only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability.
 
Third, whether a particular official has "final policymaking authority" is a question of state law.
 
Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business.

 Praprotnik, 99 L. Ed. 2d at 118.

 It is well established that a municipality cannot be held liable under § 1983 for its employees' actions solely on the basis of respondeat superior. Colburn v. Upper Darby Twp., 838 F.2d 663, 671 (3d Cir. 1988) (citing Monell v. Department of Social Services., 436 U.S. 658, 691-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)). Praprotnik makes clear that a municipality cannot be held liable under § 1983 unless the existence of an unconstitutional policy is shown. Praprotnik, 99 L. Ed. 2d at 121. Even in the absence of formal policymaking activity, however, an official "policy" may be inferred from informal acts or omissions of supervisory municipal officials, although not from the misconduct of a single low-level officer. Colburn, 838 F.2d at 671 (citations omitted). Finally, "the mere failure of a supervising policymaker to investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of policymaking authority, especially where the wrongfulness of the subordinate's decision arises from a retaliatory motive or other unstated rationale." Praprotnik, 99 L. Ed. 2d at 122.

 To prevail on their equal protection claim against the City, then, plaintiffs must have proved: (1) that it was the policy or custom of the Police Department to discriminate against female police officers and or to fail to take appropriate action when complaints of sexual discrimination or harassment were made by female police officers; (2) that discrimination against female police officers was a motivating factor; and (3) that plaintiffs were injured by the policy or custom. Cf. Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. Dec. 23, 1988).

 Both plaintiffs initially registered complaints of sex discrimination with the Police Department's Equal Employment Unit in July 1987. Plaintiffs' Exhibits 51-52. Shortly thereafter in August 1987, both plaintiffs registered their complaints with the Police Department's Internal Affairs Division (IAD).

 IAD's investigation relating to plaintiffs' complaints lasted approximately two months and the final reports to the Police Commissioner consisted of several hundred pages. N.T. VII (afternoon) at 92-95. The investigations included, inter alia, interviewing AID personnel, reviewing personnel records, and reviewing various police duty logs, reports, and assignment sheets and statistics. N.T. VII (afternoon) at 52-53.

 Upon completion, the reports were submitted to defendant Police Commissioner Tucker. In sum, Tucker found the report to be thorough and comprehensive, yet inconclusive. N.T. VII (afternoon) at 13. Specifically, Tucker stated that he "could not make a judgment, based on the information [he] had, in terms of responsibility [for the incidents involving Kelsey-Andrews and Conn at AID]." Id. Tucker testified that after receiving the report, he later assigned two female officers to AID as a warning or signal that women were going to be assigned throughout the department. Id. at 19-21.

 In determining whether the verdict against the City may stand, the court first notes that plaintiffs' constitutional rights were not violated simply because the results of IAD's investigation were inconclusive or not to their liking. See Poe v. Haydon, 853 F.2d 418, 427-28 (6th Cir. 1988), cert. denied, 488 U.S. 1007, 109 S. Ct. 788, 102 L. Ed. 2d 780 (1989) (state employee did not have constitutional right to a specific outcome following investigation of her complaint of sexual harassment).

 Second, relevant precedent makes clear that only the actions of a municipal officer with final policymaking authority may subject the City to liability under § 1983. As a police captain and sergeant, respectively, neither Liciardello nor Doyle could be considered policymakers in the Philadelphia Police Department; it appears that only the Police Commissioner could, by his acts or omissions, subject the City to § 1983 liability under relevant Supreme Court precedents. In this regard, the evidence indicated that Commissioner Tucker and his predecessor, as policymakers for the police department, issued training bulletins to all Philadelphia police officers containing information regarding sex discrimination and harassment and providing for the filing of complaints. N.T. VI (afternoon) at 13-15. Furthermore, Tucker reviewed the IAD investigatory reports and made final decisions with regard to their findings. Finally, the jury found in favor of Tucker and against plaintiffs on their § 1983 claims against him; this fact alone strongly suggests the absence of liability on the part of the City.

 Third, even assuming arguendo that Liciardello and Doyle purposely discriminated against Kelsey-Andrews and Conn, or failed to take appropriate action on their complaints of harassment or discrimination, and further assuming that Tucker failed to investigate the basis of his subordinates' discretionary decisions, such failure would not amount to a delegation of policymaking authority, especially where the wrongfulness of the subordinates' decision might arise from a retaliatory motive or other unstated rationale. Praprotnik, 99 L. Ed. 2d at 122. And, of course, the City cannot be held liable merely because it employed Tucker, Liciardello and Doyle. Colburn ...


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