Lankford v. City of Hobart

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 1/4/96
TENTH CIRCUIT

LINDA K. LANKFORD; NANCY CALVERY, )
)
Plaintiffs-Appellants, )
)
v. ) No. 95-6027
)
CITY OF HOBART; HOBART POLICE DEPART- )
MENT; QUIRINO MEDRANO, JR., individually )
and as City Marshal and Police Chief of the City of )
Hobart, )
)
Defendants-Appellees. )

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-92-164-H)

Tom R. Stephenson, Watonga, Oklahoma, for Plaintiffs-Appellants.

Andrew W. Lester (Shannon F. Davies with him on the briefs) of Lester & Bryant, P.C.,
Oklahoma City, Oklahoma, for Defendants-Appellees.

Before MOORE, BRORBY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.
 Plaintiffs Linda Lankford and Nancy Calvery brought charges against the City of

Hobart alleging they were subjected to sexual harassment and discrimination by former

Police Chief Quirino Medrano, Jr., in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1983 as well as other federal and state law

claims. A magistrate judge for the United States District Court for the Western District of

Oklahoma granted defendant’s motion for summary judgment dismissing all of plaintiffs’

claims. Plaintiffs now appeal the dismissal of their § 1983 and Title VII claims against the

City of Hobart. We exercise jurisdiction pursuant to 28 U.S.C. § 636(c)(3) and affirm the

magistrate judge’s order.1

I

Plaintiffs allege while employed as dispatchers for the Hobart Police and Fire

Departments they were subjected to sexual harassment and discrimination by Mr. Medrano,

the police chief and city marshal, which created a hostile and abusive work environment.

Such discrimination consisted of unwelcome sexual advances, obscene remarks, and

inappropriate physical touching of their bodies. They further allege when they rebuked his

advances Mr. Medrano threw temper tantrums, slandered their reputations, began spying on

1
Plaintiffs also brought charges against Mr. Medrano. On May 16, 1994, this court affirmed in part
and reversed in part the magistrate judge's order. On June 14, 1994, this court withdrew and vacated its May
16 opinion and reversed the dismissal of plaintiffs' § 1983 claim against Mr. Medrano but declined to
exercise jurisdiction over the claims against Hobart. See Lankford v. City of Hobart, 27 F.3d 477 (10th Cir.
1994). On remand, upon the joint stipulation and motion of plaintiffs and Mr. Medrano, the plaintiffs' cause
against Mr. Medrano was dismissed with prejudice.

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them, and threatened to fire them. Plaintiffs contend Hobart city officials knew or should

have known of Mr. Medrano's actions and failed to take proper remedial measures. On

appeal, plaintiffs argue summary judgment as to their Title VII and § 1983 claims should not

have been granted in favor of Hobart “because triable issues exist and the law was incorrectly

applied.”

The magistrate judge dismissed plaintiffs’ § 1983 claims after finding “Medrano had

no authority to make any policy on behalf of the City including terms or conditions of

employment and any acts of sexual harassment were personal in nature without being

officially condoned or sanctioned.” The court also found there was no evidence of a custom

or widespread practice of sexual harassment. Regarding the Title VII claims, the court found

Mr. Medrano’s sexual harassment was not so pervasive as to create a hostile work

environment. The court also noted there was no evidence that plaintiffs had been denied any

tangible work benefits as a result of the sexual harassment.

We review a motion for summary judgment de novo. Considine v. Newspaper Agency

Corp., 43 F.3d 1349, 1356 (10th Cir. 1994). Under Fed. R. Civ. P. 56(c) a motion for

summary judgment is appropriate only where it is found “there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” The

district and appellate courts are required to draw all reasonable inferences in the light most

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favorable to the nonmovant. Ball v. Renner, 54 F.3d 664, 665 (10th Cir. 1995).

II

We will first address plaintiffs' § 1983 claims. Title 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom,
or usage of any State ..., subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.

Municipalities, such as Hobart, are considered “persons” to whom § 1983 liability applies.

Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 690 (1978). Sexual harassment

can violate the Fourteenth Amendment right to equal protection of the laws thus triggering

a § 1983 cause of action. Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989).

Notably, even if we find Mr. Medrano's actions violated plaintiffs' rights to equal

protection, the City of Hobart can be held liable under § 1983 only if Mr. Medrano's actions

can be characterized as representing an official policy or custom of the City of Hobart. In

Monell, the Supreme Court held “it is when execution of a government's policy or custom

... inflicts the injury that the government as an entity is responsible under § 1983.” 436 U.S.

at 694. Simply employing a tortfeasor is not enough to establish liability under § 1983. Id.

at 691.

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 In order to warrant liability, a municipal policy must be a “‘policy statement,

ordinance, regulation, or decision officially adopted and promulgated by [a municipality's]

officers.’” Starrett, 876 F.2d at 818 (quoting Monell, 436 U.S. at 690). In the case at bar,

there is no allegation nor evidence suggesting the City of Hobart had an official policy

favoring sexual harassment. In fact, there is evidence the City of Hobart had a written city

policy expressly forbidding it.

If the violation cannot be characterized as official policy then the City of Hobart can

still be held liable if the practice is “so permanent and well settled as to constitute a 'custom

or usage' with the force of law.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970). In

order to establish a custom, the actions must be “persistent and widespread ... practices of

[city] officials.” Starrett, 876 F.2d at 818 (quoting Monell, 436 U.S. at 691). Furthermore,

the official charged with sexual harassment must also have “final policy making authority”

with respect to the acts in question as a matter of state law. Pembaur v. City of Cincinnati,

475 U.S. 469, 483 (1986) (plurality). In Pembaur, the Court expressly limited municipal

liability under § 1983 “where--and only where--a deliberate choice to follow a course of

action is made from among various alternatives by the official or officials responsible for

establishing final policy with respect to the subject matter in question.” Id. at 483-84.

The question is thus whether Mr. Medrano's acts can be characterized as a deliberate

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choice of the city and whether he had final policy making authority for the City of Hobart.

The City of Hobart is an aldermanic form of government. Under this system, the city mayor

has all final policy making decision power and control regarding the hiring and firing of city

employees. Okla. stat. tit. 11, § 9-105 (1995). Mr. Medrano served in a dual role. He was

elected city marshal by the population and then appointed chief of police by the City Council.

We do not have Mr. Medrano's job description before us, but we do know the aldermanic

form of government did not authorize him to hire or fire employees nor to make official

policy as a matter of state law.

Mr. Medrano's ability to hire or fire employees is not determinative in a § 1983 claim

as was shown in our Starrett decision. The defendant in Starrett, an elected deputy county

assessor, was charged with sexually harassing a female county assessor by making unwanted

sexual advances, inappropriate physical contact and obscene gestures. Although Starrett

involved only one plaintiff, she presented evidence that the same defendant had sexually

harassed other female employees. She also introduced evidence that he retaliated against her

for rejecting his advances, culminating in her termination. Starrett, 876 F.2d at 819. In

Starrett, the defendant had the authority to hire and fire the plaintiff and the county was held

liable for the plaintiff's wrongful termination. However, the county was not held responsible

for the defendant's sexual harassment under § 1983 because “isolated and sporadic acts of

sexual harassment directed at a few specific female members of his staff” did not amount to

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a county custom. Id. at 820. The Starrett court noted that there was “no indication that

sexual harassment by others in the office was tolerated or occurred” or that the defendant

materially altered the plaintiff's employment duties or status prior to the termination. Id.

In this case, plaintiffs have also not alleged any sexual harassment in the office other

than that committed by Mr. Medrano at very specific times and places against certain female

employees. This case exemplifies a situation where the defendant was committing private,

rather than public, acts of sexual harassment. There is also no indication that Mr. Medrano

materially changed their employment duties or status as part of his harassment. The factual

dispute regarding his ability to hire and fire the plaintiffs is irrelevant because neither

plaintiff has alleged wrongful termination or that keeping their jobs was contingent on their

acquiescence to Mr. Medrano's sexual advances. Ms. Calvery does allege that he demoted

her from chief dispatcher to dispatcher. However, this “demotion” resulted in no change in

her job conditions or salary. Ms. Calvery was terminated by the City Council on Mr.

Medrano's recommendation. Although there is some dispute regarding the reasons for the

termination, when Ms. Calvery challenged her termination the City Council provided her

with a post-termination hearing, at which no mention of sexual harassment was made by Ms.

Calvery, and she was reinstated to her former position with compensation for missed pay,

subject to a ninety-day probationary period.

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 Plaintiffs also allege that Hobart city officials knew or should have known of Mr.

Medrano's conduct yet failed to take appropriate measures. In Woodward v. City of

Worland, 977 F.2d 1392, 1400 (10th Cir. 1992), cert. denied, 113 S. Ct. 3038 (1993), we

adopted the Third Circuit's test for supervisory liability under § 1983 as requiring

“allegations of personal direction or of actual knowledge and acquiescence.” Id. (quoting

Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). Here, plaintiffs have

not made any allegations of personal direction by city officials. Plaintiffs do claim, however,

the City had actual knowledge of Mr. Medrano’s actions. Ms. Calvery states she told the

Mayor of Hobart of Mr. Medrano’s actions after she was terminated and prior to her

termination hearing. Although the Mayor denies Ms. Calvery complained to him of sexual

harassment, after the alleged conversation occurred, Ms. Calvery was given a due process

hearing, was reinstated to her position and the sexual harassment stopped. The Mayor does

not dispute that Ms. Lankford told him of Mr. Medrano's actions. Rather than acquiescing

to the conduct, the Mayor immediately suspended her with pay so he could conduct an

investigation. Finding inconclusive results regarding her claims, she was reinstated, the

dispatcher's office was moved and her schedule was changed so she would not come into

contact with Mr. Medrano. Ms. Lankford admits that after these steps the harassment

stopped. She does claim, however, that she was demoted from chief dispatcher to dispatcher.

But as we noted earlier, such a change was merely nominal. Because Hobart did not

acquiesce to Mr. Medrano's actions but rather took steps that resulted in preventing further

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harassment and because Mr. Medrano's conduct constitutes neither a city policy nor custom

the district court properly dismissed plaintiff's § 1983 claims.2

III

We now turn to plaintiffs' Title VII claims.3 Because the 1991 Civil Rights Act does

not apply retroactively, plaintiffs are governed by pre-1991 Civil Rights Act law. Landgraf

v. USI Film Products, ___ U.S. ___, ___, 114 S. Ct. 1483, 1508 (1994). Under the pre-1991

Civil Rights Act plaintiffs are “restricted to the traditional equitable remedies of

reinstatement, back pay, and front pay as well as declaratory and injunctive relief.” Cox v.

Phelps Dodge Corp., 43 F.3d 1345, 1347 (10th Cir. 1994).

Ms. Calvery is still employed as a dispatcher for the City of Hobart and has no claim

for reinstatement. She also has made no claim for front pay or any type of declaratory or

injunctive relief. In fact, declaratory or injunctive relief would be inappropriate in this case

because Mr. Medrano is no longer a city employee nor city official. Ms. Calvery did make

2
Plaintiffs' failure-to-train allegations against the City of Hobart lack merit. Under City of Canton v.
Harris, 489 U.S. 378, 388 (1989), in order to prevail the plaintiffs must show that the City of Hobart's failure
to train rose to the level of “deliberate indifference.” Plaintiffs have made no such claim nor provided any
evidence on this issue.
3
The magistrate judge dismissed Ms. Calvery's Title VII claims as barred by the statute of limitations
because she did not bring her claims within 300 days after the alleged discriminatory practice. The
magistrate judge, however, failed to consider the possibility of an equitable tolling as provided in Zipes v.
Trans World Airlines, Inc., 455 U.S. 385 (1982). We will not address the merits of an equitable tolling claim
because we find Ms. Calvery's Title VII claims fail to allege an adequate remedy.

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a vague claim that she was not fully compensated for all the back pay she missed during the

period between her dismissal and her reinstatement. But there were no charges that this

dismissal was based on violations of Title VII and those damages are therefore not applicable

to this cause of action.

Ms. Lankford admits she quit her position due to personality conflicts with the new

chief of police, scheduling problems and overall job dissatisfaction. She also has not made

any claims for back pay, front pay, declaratory relief, or injunctive relief. Plaintiffs have

claimed they were denied overtime payments. However, neither is able to document nor even

estimate how much overtime they are owed, why they were denied such payments or whether

any dispatchers ever received overtime. Furthermore, plaintiffs do not dispute a 1991

Department of Labor investigation which found overtime was owed to certain City of Hobart

employees. Neither plaintiff was found to be owed overtime by this investigation.

Therefore, we need not address the merits of plaintiffs' Title VII claims because the

lack of an appropriate remedy moots their claims for relief. A claim is moot when the

controversy no longer “touch[es] the legal relations of parties having adverse legal interests”

in the outcome of the case. DeFunis v. Odegaard, 416 U.S. 312, 317 (1974) (per curiam).

“The legal interest must be more than simply the satisfaction of a declaration that a person

was wronged.” Cox, 43 F.3d at 1348. In this case, because no legal remedies are available

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to plaintiffs a verdict in their favor would do little more than provide them with emotional

satisfaction. Such satisfaction is not an appropriate remedy under these circumstances. See

also Ashcroft v. Mattis, 431 U.S. 171, 172-73 (1977) (per curiam) (holding that a claim is

moot when the primary interest is the emotional satisfaction from a favorable ruling).

For the reasons set forth above, we AFFIRM the magistrate judge's grant of summary

judgment to the City of Hobart regarding plaintiffs' § 1983 and Title VII claims.

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