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Keenan v. City of Philadelphia

filed: December 17, 1992.

CAROL KEENAN AND LAWRENCE GERRARD AND ERNEST GILBERT AND WALTER SMITH AND DANIEL ROSENSTEIN
v.
CITY OF PHILADELPHIA AND PHILADELPHIA POLICE DEPARTMENT AND KEVIN TUCKER AND JAMES GALLAGHER AND ROY STONER AND ROBERT GRASSO AND VICTOR MARCONE AND RALPH J. TETI, ESQUIRE KEVIN TUCKER, JAMES GALLAGHER, ROY STONER, CITY OF PHILADELPHIA, PHILADELPHIA POLICE DEPARTMENT AND ROBERT GRASSO, APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 88-7156).

Before: Becker, Hutchinson and Higginbotham, Circuit Judges.

In this appeal, defendants challenge the district court's March 19, 1991 order dismissing in part their motions for judgment notwithstanding the verdict and/or remittitur and/or new trial and challenge the amount of attorneys' fees and costs. The plaintiffs in this case alleged that their equal protection and free speech and association rights had been infringed upon and that they were unlawfully transferred from their posts in the Homicide Unit of the Philadelphia Police Department in violation of 42 U.S.C. § 1983. A jury awarded the plaintiffs $640,000 in compensatory damages and $1,800,000 in punitive damages. The plaintiffs accepted the district court's remittitur of the punitive damages award to $1,200,000. The district court entered a judgment against the defendants and awarded attorneys' fees and costs of $1,127,657.90.

We will affirm the compensatory damages award assessed against the individual defendants and the City of Philadelphia. We will affirm in part and reverse in part the punitive damages award. Finally, we will vacate the award of attorneys' fees and costs and remand the case to the district court for further proceedings consistent with this opinion.

I. Facts and Procedural Background

Our nation has committed itself, through its Constitution and through substantial civil rights legislation, to prohibit unlawful gender discrimination. Nonetheless, the facts of this case demonstrate that even within a city police department, this prohibition has been disregarded.

All five plaintiffs in this case worked in the Homicide Unit of the Philadelphia Police Department. Detective Carol Keenan (Keenan) began working in the Homicide Unit in June 1985. She became the regular partner of Detective Lawrence Gerrard (Gerrard) and also worked with another detective, Ernest Gilbert (Gilbert). All three worked under the supervision of Sergeant Daniel Rosenstein (Rosenstein). Detective Walter Smith (Smith) was a representative of the Fraternal Order of Police (FOP), the police union.

All four individual defendants held various positions in the command structure of the Philadelphia Police Department. In June 1986, Captain Robert Grasso (Grasso) assumed command of the Homicide Unit. Grasso's immediate superior was Inspector Roy Stoner (Stoner). In turn, Stoner's superior was Chief Inspector James Gallagher (Gallagher). At the apex of this chain of command, Gallagher's superior was the Police Commissioner, Kevin Tucker (Tucker).

Friction developed between Captain Grasso and Detective Keenan as Grasso closely monitored Keenan's activities. One of Keenan's colleagues, Rosenstein, testified that Grasso was like "a heat-seeking missile: He just seemed to be homed right at Carol [Keenan] and wouldn't get off unless he could find the heat."

As we detail more fully infra, Grasso discriminated against Keenan in several specific instances: he prevented her from going on overnight trips, from taking a witness protection detail, and from going on a transportation detail. Gerrard, Gilbert, Rosenstein, and Smith supported Keenan in her complaints against this discrimination. Stoner, Gallagher, and, to a lesser extent, Tucker all had knowledge of the situation in the Homicide Unit.

On June 5, 1987, Keenan, Gerrard, Gilbert, and Smith were transferred from the Homicide Unit to detective units around Philadelphia. Rosenstein, who was on special assignment away from the Homicide Unit from June 1987 to March 1988, was transferred out of the Homicide Unit to uniformed patrol upon his return on April 1, 1988. The transfers of Keenan, Gerrard, Gilbert, and Smith were initiated by Captain Grasso and signed and approved by Grasso, Inspector Stoner, Chief Inspector Gallagher, and Police Commissioner Tucker. Grasso initially recommended the transfer of Smith in November 1986 and of Gilbert and Gerrard in December 1986. He initially recommended the transfers for Keenan and Rosenstein on May 12, 1987. Grasso sent Police Commissioner Tucker memoranda with the transfer requests for Rosenstein, Keenan, Gerrard, Gilbert and Smith on May 15, 1987. The transfers were approved by Inspector Stoner on May 15, 1987 and by Chief Inspector Gallagher on May 18, 1987. Police Commissioner Tucker approved the transfers at some later point.

After the transfers, in March 1988, the Internal Affairs Division (IAD) of the Philadelphia Police Department conducted investigations of Keenan, Gerrard, Gilbert, and Smith on the basis of anonymous letters. We note for the record that evidence was presented that these investigations were selective and in retaliation for plaintiffs' formal complaints challenging their transfers.*fn1

On September 15, 1988, Keenan, Gerrard, Gilbert, Smith, and Rosenstein filed a complaint in district court naming as defendants the City of Philadelphia, Tucker, Gallagher, Stoner, Grasso, Lieutenant Victor Marcone (Marcone), and Deputy City Solicitor Ralph Teti (Teti). Plaintiffs alleged in their complaint that defendants had acted to discriminate and retaliate against them. On March 3, 1989, the district court dismissed the complaint as to defendants Marcone and Teti.

The matter went to trial on November 22, 1989. On January 16, 1990, the jury returned a verdict in favor of plaintiffs, assessing $2.44 million in damages: $640,000 in compensatory damages and $1,800,000 in punitive damages.*fn2 All defendants were liable for the compensatory damages and all but the City of Philadelphia were assessed punitive damages.*fn3 On March 19, 1991, the district court denied defendants' motions for a new trial and for judgment n.o.v. but granted a remittitur of one third of the punitive damages.*fn4 The district court also awarded plaintiffs attorneys fees and costs of $1,127,657.90. Plaintiffs accepted the punitive damages award as remitted. Defendants filed their timely appeal on April 18, 1991. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

II. Liability

Defendants present several issues on appeal. While we have considered them all,*fn5 we will address in this section whether the evidence was sufficient to support the equal protection and First Amendment claims, whether municipal liability was proper, and whether prejudicial error was committed by the trial Judge in his comments on the witnesses and the evidence. We affirm the district court on these issues.

A. Sufficiency of Evidence*fn6

The standard of review of a denial of a motion for judgment n.o.v. on a sufficiency of evidence argument is limited. "'Because a jury determined the issue, our scope of review is limited to examining whether there is sufficient evidence to support the verdict, drawing all reasonable inferences in favor of the verdict winner.'" Kelly v. Matlack, 903 F.2d 978, 981 (3d Cir. 1990) (quoting Blum v. Witco Chemical Corp., 829 F.2d 367, 372 (3d Cir. 1987)). Denial of the motion must be affirmed "unless the record is 'critically deficient of that minimum of evidence from which the jury might reasonably afford relief.'" Link v. Mercedes-Benz, 788 F.2d 918, 921 (3d Cir. 1986) (citation omitted).

1. Equal Protection

As we have recently stated:

To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs must prove the existence of purposeful discrimination. They must demonstrate that they "received different treatment from that received by other individuals similarly situated." Specifically to prove sexual discrimination, a plaintiff must show that any disparate treatment was based upon her gender.

Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (citations omitted).

There is easily sufficient evidence in the record for a reasonable jury to have concluded that Captain Grasso treated Keenan differently from other individuals similarly situated and did so based upon her gender.*fn7 As the following incidents amply demonstrate, Grasso discriminated against Keenan in his running of the affairs of the Homicide Unit.

In August 1986, Rosenstein originally assigned Gerrard and Keenan to protect and debrief a female witness. The assignment entailed overnight protection in a hotel. Rosenstein made the assignment on the basis of Gerrard's expertise in the field of the investigation and on the basis of Keenan's skill in interviewing and the rapport she had previously developed with the witness to be protected and debriefed. However, Grasso refused to allow Keenan to go on this overnight witness protection detail because "she's got a child at home." Keenan had no child, although an eighteen-year-old foreign exchange student and Keenan's adult cousin were living with Keenan at the time. Grasso replaced Keenan with a male detective, Frank O'Brien, who had three minor children at home. The other male detective on the assignment, Gerrard, had four minor children at home.

In November 1986, Grasso refused to allow Keenan and Gerrard to go on a trip to Atlantic City to retrieve a murder weapon and talk to a witness who had been identified as possessing important knowledge in an on-going investigation. Grasso instead ordered that Keenan and Gerrard telephone the witness in Atlantic City and request that she come to Philadelphia on a bus and bring the murder weapon with her. Rosenstein asked Grasso to rethink the order, but Grasso stood by his order.

On December 5, 1986, Grasso gave Rosenstein permission to bring in "a couple of detectives" on a Saturday to question an informant who had information that could potentially resolve several unsolved murder cases. Rosenstein arranged that Gilbert and Keenan would come in to conduct the interview. Grasso came into the office that day. When Grasso saw that Keenan was there, he called Rosenstein into his office and asked "What's she doing here?" When Rosenstein explained, Grasso responded that he had meant that only Rosenstein and one detective should have been assisting with the informant. Later, Grasso told Rosenstein "send her home" or "send Keenan home." Grasso did not suggest that Gilbert be sent home.

In March 1987, Keenan, Gilbert, and Gerrard were served with court notices, requesting their presence at trial the next day. Grasso brought Rosenstein and Lieutenant Gibbons, another of Keenan's superiors, into his office. When Rosenstein and Lieutenant Gibbons came out, they handed signed notices to Gilbert and Gerrard allowing them to go, but Lieutenant Gibbons informed Keenan that he did not yet know whether Keenan was approved to go or not. Grasso had instructed that he, Grasso, be telephoned at 10 p.m. that day at which time he would make the decision. When Keenan questioned Rosenstein and Lieutenant Gibbons and asked why "it was always me," Grasso came over and said: "Sounds to me like somebody here has something to say." When Keenan then asked Grasso for a decision on the court notice regardless of which way the decision was to go, Grasso pointed his finger at Keenan, said: "You've got a problem," and left the room. Keenan interpreted this comment as a threat that Grasso was going to do something to her.

In a final incident, Grasso's action and language further demonstrated that he treated Keenan differently on account of her gender.*fn8 On May 12, 1987, Grasso prohibited Keenan from transporting a male cooperating prisoner from a prison to the District Attorney's office in Philadelphia for the purpose of interviewing and debriefing the prisoner. Rosenstein wanted to assign Keenan and Gerrard to the task, because both were familiar with the cooperating prisoner, were trusted by the prisoner, were familiar with the case, and were capable interviewers. After Rosenstein had explained this to Grasso, Grasso had no problem with Gerrard but did not want Keenan to participate. When Rosenstein asked: "Why not Keenan?," Grasso stated: "Well, this is no job for a woman." Grasso stated that he wanted two men to perform the detail. When Gerrard spoke with Grasso by phone, asking: "Captain, are you saying she can't go because she is a girl?," Grasso responded that he would rather have a male detective. Rosenstein found a man to go on the detail with Gerrard.

These incidents provide sufficient evidence in the record for a jury to have found purposeful discrimination by Grasso against Keenan based upon her gender.

2. Free Speech and Association

To succeed on a § 1983 claim on the basis of free speech or association, plaintiffs must show that the protected activity engaged in was a substantial or motivating factor in the decision to take adverse action against them. Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir. 1984). Plaintiffs must "produce evidence sufficient to show that the defendants know [of their protected activity]." Laskaris, 733 F.2d at 265. For supervisors, liability can be established in two ways: (1) "through allegations of personal direction or of actual knowledge and acquiescence," or (2) through proof of direct discrimination by the supervisor. Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (quoting and citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

There is sufficient evidence in the record for a reasonable jury to have concluded that the plaintiffs' engagement in protected activity was a substantial or motivating factor in the decision by the defendants to take adverse action against them. Evidence was presented that, by associating with and speaking out on behalf of Keenan, plaintiffs Gerrard, Gilbert, Rosenstein, and Smith each engaged in protected activity. Keenan herself also exercised her free speech and association rights.

Evidence was also presented that each of the defendants took actions that adversely impacted on the plaintiffs. Inspector Stoner approved each transfer request made and forwarded by Captain Grasso without asking for reasons. Chief Inspector Gallagher and Police Commissioner Tucker also approved the plaintiffs' transfers without asking why the transfers were necessary.

The remaining question is that of knowledge on the part of the defendants. Considering the first three individual defendants, we believe there was sufficient evidence for a jury to find, with reasonable inferences, that Grasso, Stoner, and Gallagher each knew of the plaintiffs' engagement in protected activity before May 15, 1987, the date that Grasso forwarded the transfer requests to Stoner and the date that Stoner approved them.

The events occurring from March 1987 to June 1987 demonstrate this knowledge. On March 25, 1987, after the incident involving Grasso's delayed approval of the court notice requesting her to appear in court, Keenan met with Grasso's superior, Inspector Stoner. Keenan explained to him some of the incidents that had occurred to that point. Keenan informed Stoner that she believed, after working with Grasso for nine months, that Grasso hated her. When Stoner asked why, Keenan said that she did not know. Keenan did not want Stoner to take any action but was apprising him of the situation so that if Grasso did anything, Stoner would be in a position to make an informed decision. She informed Stoner that Rosenstein, Gerrard, and Gilbert would support her as witnesses.

After Grasso prohibited Keenan from participating in the transportation of the male cooperating prisoner on May 12, 1987, Keenan met with Stoner again on May 13, 1987. As we set forth more fully infra, Keenan again gave Stoner the details of Grasso's treatment of her but was told in response that her complaint could not be classified as one of sex discrimination. On the same day as the meeting between Keenan and Inspector Stoner, Stoner met with his superior, Chief Inspector Gallagher. Stoner advised Gallagher about the problem involving Keenan.

After Keenan had met with Stoner on May 13, 1987, Keenan spoke with Smith, the representative of the FOP, the police union. Smith explained to Keenan "what [her] rights were, as far as filing a grievance and as far as sexual discrimination and what can be done about this, what the FOP can do . . . ." Smith allowed Keenan to make her own decision about filing a grievance, but he advised her to seek the advice of FOP counsel and to speak to Ken Rocks (Rocks), FOP vice president and legislative representative. During this conversation, Keenan and Smith were in Smith's office in the Homicide Unit, an office about five to ten feet away from Grasso's office which is set off from the rest of the area by a small plywood partition with a door. Grasso, sitting in his office, appeared to be intent on overhearing the conversation between Keenan and Smith.

Moreover, we believe there was sufficient evidence presented for a jury to find, with reasonable inferences, that Tucker knew of the actions of his subordinates. Two pieces of evidence support Tucker's knowledge.

First, FOP President Robert Hurst (Hurst) testified that on May 19, 1987 he discussed "the Carol Keenan case" with Police Commissioner Tucker. Hurst had met with Keenan after her second meeting with Stoner on May 14, 1987. Keenan told Hurst of several of the incidents involving Grasso and asked Hurst to intercede on her behalf with Tucker. Hurst agreed. At Hurst's request, Keenan prepared a handwritten memo putting her complaints in writing. Keenan delivered this memorandum to Hurst on May 18, 1987. At this point, Hurst suggested to Keenan that he meet with Chief Inspector Gallagher, rather than Commissioner Tucker, and Keenan agreed. At a regularly scheduled meeting with Tucker on May 19, 1987, Hurst nonetheless discussed "the Carol Keenan case" with Tucker. Hurst did not bring the complaint formally and did not reduce it to writing. Hurst did tell Tucker that he was going to discuss it further with Chief Inspector Gallagher after the meeting, to which Tucker responded "Good, you do that."*fn9

Second, Anthony Molloy, an attorney representing the FOP, testified that at a first-step grievance meeting in late June 1987 which he, Tucker, and Rocks attended, "the police commissioner stated that at the time that he had approved the transfer . . . that he had been fully aware of the actions of his subordinate command personnel in this particular case, and that he agreed with the actions taken by his commanders." According to Molloy's testimony, Tucker, in discussing the transfer, stated that he had difficulty with a female detective being assigned to transport a male prisoner. Molloy's account of the June conversation was also supported by testimony given at an earlier arbitration hearing by FOP official Rocks, testimony which was read into evidence at the trial and affirmed by Rocks. While liability does not flow solely from Tucker's endorsement of Grasso's procedure, Tucker's Discussion of this practice does demonstrate his knowledge of the situation in Homicide Division.

This case is not one where the transmission of knowledge regarding each of the individual plaintiffs' particular activities through the police department's chain of command has been precisely set forth. Nonetheless, the above evidence demonstrates that each defendant did learn specifically of "the Carol Keenan case," the situation that involved Detective Keenan and Captain Grasso. It is reasonable to infer that knowledge of the activities of her co-workers, the male plaintiffs, was also passed along. With reasonable inferences drawn in favor of the plaintiffs, the evidence is sufficient to establish that the plaintiffs were impermissibly disciplined by defendants Grasso, Stoner, Gallagher, and Tucker for conduct that constituted protected activity.

B. Municipal Liability

Read as a whole and with reasonable inferences in favor of the plaintiffs, there was also sufficient evidence for a reasonable jury to have found the City of Philadelphia liable for the constitutional violations committed by Grasso, Stoner, Gallagher, and Tucker.

To hold a municipality liable under § 1983, the Supreme Court has made clear that plaintiffs may not depend on the theory of respondeat superior but rather need to prove that the municipality supported the violation of the rights complained of. Monell v. Dept. of Social Services, 436 U.S. 658, 695, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978). The Court stated:

It is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Id. at 2037-38. The Supreme Court has also noted that "municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Pembaur v. Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986); see also Bartholomew v. Fischl, 782 F.2d 1148, 1154 (3d Cir. 1986) ("a 'single instance' of misconduct by a policymaking city official could provide the basis for an inference that an official policy existed").

In this case, the district court correctly determined that Police Commissioner Tucker was an official policymaker. In a previous case involving different facts, we also found that this same Philadelphia Police Commissioner was an official policymaker. See Andrews, 895 F.2d at 1481. As in Andrews, Tucker here "retained the authority to measure" the conduct and decisions of his subordinates, Grasso, Stoner, and Gallagher.

Further, the evidence in this case shows that Tucker knowingly acquiesced to many of the actions of his subordinates. In the light of his knowledge, Tucker's approval of the transfer requests establishes municipal liability. We note that unlike Andrews, 895 F.2d at 1482, the jury's verdict finding Tucker ...


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