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 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)).
In sum, the court finds the record critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief to plaintiffs on their § 1983 claim against the City of Philadelphia. As a matter of law, the court finds that no reasonable jury could conclude that it was the policy or custom of the Police Department to discriminate against female police officers or to fail to take appropriate action when complaints of sexual discrimination or harassment were made by female police officers. Similarly, the jury concluded that Police Commissioner Tucker did not violate either plaintiffs' constitutional rights. Absent proof of a policy or custom, the verdict against the City under § 1983 cannot stand. Accordingly, judgment notwithstanding the verdict will be granted for the City on the § 1983 claims.
B. Individual Liability
1. Qualified Immunity
In support of their motion for judgment notwithstanding the verdict, defendants' argue that Liciardello and Doyle are entitled to qualified immunity as police supervisors. Some of the defendants previously raised this defense in a motion for summary judgment,
which was denied by the court. See Order filed Dec. 6, 1988. Defendants took an interlocutory appeal on the first day of trial to that portion of the court's order denying the existence of qualified immunity, see Notice of Appeal filed Dec. 6, 1988, which appeal was later dismissed by the Court of Appeals pursuant to Fed. R. App. P. 42(b) on Dec. 27, 1988.
As the Third Circuit recently stated, "The defense of qualified immunity for government officials represents a compromise between the conflicting concerns of permitting the recovery of damages for vindication of constitutional rights caused by the abuse of public office and permitting government officers to perform discretionary functions without fear of harassing litigation." Hynson v. City of Chester, 864 F.2d 1026 (3d Cir. 1988). The Supreme Court has noted that:
By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official's acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence and without fear of consequences.