Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-19-1995
Wilson v Susquehanna Twnship
Precedential or Non-Precedential:
Docket 94-7528
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Recommended Citation
"Wilson v Susquehanna Twnship" (1995). 1995 Decisions. Paper 135.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/135
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________________
No. 94-7528
___________________
JACKIE WILSON,
v.
SUSQUEHANNA TOWNSHIP POLICE DEPARTMENT
and SUSQUEHANNA TOWNSHIP BOARD OF
COMMISSIONERS,
Appellees
JACKIE L. WILSON,
Appellant
____________________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
D.C. No. 93-cv-778
___________________________
Argued: March 10, 1995
Before: BECKER, SCIRICA and WOOD, Jr.,* Circuit Judges
(Filed May 19, 1995)
IRA H. WEINSTOCK, ESQUIRE
WENDY DULLEA BOWIE, ESQUIRE (ARGUED)
800 North Second Street
Suite 100
Harrisburg, PA 17102
Attorneys for Appellant
CHRISTINE M. BRENNER, ESQUIRE (ARGUED)
Marshall, Dennehey, Warner, Coleman &
Goggin
1845 Walnut Street
Philadelphia, PA 19103
*
. The Honorable Harlington Wood, Jr., United States Circuit
Judge for the Seventh Circuit, sitting by designation.
BRIGID ALFORD, ESQUIRE
LEONARD TINTNER, ESQUIRE
Boswell, Snyder, Tintner & Piccola
315 North Front Street
P.O. Box 741
Harrisburg, PA 17108-0741
Attorneys for Appellees
______________________________
OPINION OF THE COURT
______________________________
WOOD, Jr., Circuit Judge.
In a bench trial, the district court found that the
plaintiff-appellant, Jackie L. Wilson, had failed to sustain her
burden of proof in demonstrating she was discriminated against
because of her gender by the defendants-appellees, Susquehanna
Township Police Department and Susquehanna Township Board of
Commissioners. Ms. Wilson alleged she was wrongfully denied a
new position, title, and job responsibilities in the police
department in violation of Title VII of the Civil Rights Act.1
Ms. Wilson appeals.
In its Memorandum Opinion of August 15, 1994, the
district court, in spite of its ruling adverse to Ms. Wilson,
expressed amazement at the evidence adduced at trial detailing
the sexually charged atmosphere existing in the police
1
. Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e, et seq.
department. In their brief, even the appellees concede "that the
environment at the Susquehanna Township Police Department was
from time to time bawdy and crude." We, too, are appalled that
this extremely offensive sexual environment was permitted to
exist in any workplace, but particularly in a vital public
office. That, however, does not end our analysis.
Ms. Wilson, a civilian employee, was first hired by the
police department in 1980 as a clerk typist, and in 1990, was
promoted to a secretarial position with a pay increase. In 1991,
the police department acquired a new record keeping computer
system. Ms. Wilson and Officer Donald Smith each did some of the
preliminary work in selecting the particular computer system and
in its installation and utilization. An outside computer
consultant recommended that a Records System Supervisor position
be created to oversee use of this new system. It was known that
both Ms. Wilson and Officer Smith were interested in this new
position. The choice between them was up to Chief Thomas Bell.
Chief Bell was first employed by the department in 1969
and became chief in 1988. He was the supervisor of both Ms.
Wilson and Officer Smith. The problem arises because of Chief
Bell's selection of Officer Smith against the background of the
sexual environment in the police department and other evidence of
gender bias. This is not a situation where Chief Bell did not
know about the offensive atmosphere in his department. He, in
fact, was part of the problem.
No fault is found with the qualifications of Officer
Smith. The record shows he was a college graduate, had taken
computer courses in high school and attended computer seminars.
Ms. Wilson had previous experience with computers in the
department. She was not a college graduate, but had taken
college courses and was pursuing a degree in Integrated
Information Systems Management. Ms. Wilson was thoroughly
familiar with department record keeping whereas Officer Smith's
previous duties had involved traffic safety.
The sexual harassment of women mentioned by the
district court is detailed and undisputed in the record. We need
only summarize, not detail, that evidence to reveal its extreme
offensiveness. Among other things, the evidence showed the
circulation on a daily basis of sexually explicit drawings, and
the posting of obscene notices, some referring to female
employees by name. Sexual conversations with female employees
accompanied by leering were common place. A professional x-rated
movie was shown, as well as graphic home videos. The female
employees were called to the break room by officers to join them
in viewing these pornographic films. The Chief talked about the
sex life of some of the officers as well as his own, even
commenting adversely about his own anatomy. The Chief also made
other sexual comments offensive to women, if not also to men.
These comments were about the anatomy of female employees and
their physiological and sexual differences. Ms. Wilson testified
about an indecent assault on her by an officer. When she
complained to Chief Bell he laughingly dismissed it. The
testimony showed that Chief Bell was fully aware of this
pervasive sexual misconduct in the department. There is,
however, other pertinent evidence of gender bias which we will
set forth later.
The district court in applying the law to the facts
first followed McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and found that plaintiff had shown she was a member of a
protected class. She was qualified for the position, but
rejected, and a non-member of the class, Officer Smith, was
treated more favorably. The district court held that the
plaintiff made out a prima facie case of sexual discrimination.
The district court next considered whether defendants
had articulated a legitimate non-discriminatory reason for their
bypassing of the plaintiff in favor of a non-member of the class,
and concluded that they had. The defendants offered three
explanations. First, the defendants claimed they wanted a police
officer who would most likely remain in the new position for a
long period of time. The district court promptly disposed of
that reason as not credible, noting Ms. Wilson had been with the
department for eleven years and Officer Smith only fifteen
months. Second, the defendants claimed that having an officer in
charge would better fulfill their responsibility in keeping
department records confidential. The district court saw this as
a transparent excuse, finding that Ms. Wilson had had access to
virtually all department records prior to the installation of the
new computer system. The district court also noted that Chief
Bell testified that the confidential police information is now
entered into the new computer system, not by police officers, but
by two civilian employees.
The defendants' final excuse was that a police officer
within the police chain of command was preferable to a civilian
in the new position because an officer would be more accountable
to the Chief of Police. This explanation was found by the
district court to be "more credible," which in view of the two
other pretextual reasons was not a very high threshold. The
district court gave weight to the fact that the discipline of
civilian employees is the responsibility of the Township Manager,
not the Police Chief, as it is with police officers. Chief Bell
wanted control. The court found this to be a legitimate
justification, and therefore, not pretextual.
The district court explained that "[o]nce the employer
had articulated a legitimate, non-discriminatory reason for the
employment action, the plaintiff must demonstrate that the
proffered reason is merely a pretext for discrimination." The
plaintiff was held not to have met her burden in regard to this
one remaining reason.
Next the district court found, citing St. Mary's Honor
Center v. Hicks, ___ U.S. ___, 113 S. Ct. 2742 (1993), and
assuming arguendo that even had Ms. Wilson demonstrated all
defendants' excuses to be pretextual, she nevertheless failed to
carry her burden of persuasion. In making this determination,
the district court did not ignore the "inappropriate conduct" in
the police department, but concluded that Ms. Wilson had not
proven that the offensive conduct had resulted in discriminatory
employment actions regarding women. As a basis for this
conclusion, the district court credited the fact that three women
police officers had been appointed to special duty assignments,
assignments also sought by male officers. That is not disputed
by Ms. Wilson, but those special duty assignments were not
supervisory. It appears that no woman had ever been appointed to
a supervisory position by Chief Bell.2 Further, at least two of
these three special assignments to women were made only after Ms.
Wilson's gender complaint had been filed with the Pennsylvania
Human Relations Commission.
The district court gave no weight to the uncontroverted
comment of Mr. Caughey, the Township Manager, that "if he had to
pay a woman what a man makes he wouldn't hire any women."
Another woman employee of the township testified she heard the
Township Manager say "there would be no woman supervisor if he
had anything to do with it." The district court found that
evidence not to be persuasive because the appointment decision
was Chief Bell's, not the Township Manager's, and further because
of the actual assignment of the three women police officers to
special duty. The Township Manager did not make the appointment
technically; Chief Bell did, but as might be expected the record
reveals that the Township Manager took an active part in
personnel matters and expressed his discriminatory views. The
record, however, does not reveal how much influence the Township
Manager had over police personnel, but as Township Manager he
2
The new position did not involve the supervision of people,
only computers, although defendants in their brief make the point
that Ms. Wilson had never had a department supervisory position.
That is not surprising in view of the evidence concerning the
department.
likely had some control, if not technically, at least
practically. The Township Manager and Chief Bell were of one
mind concerning the appointment of women to supervisory
positions. The record shows that when Ms. Wilson pressed Chief
Bell for the "real reason" she did not get the promotion, he told
her that "Miles [Caughey] wanted a man." In dismissing Caughey's
animus as not dispositive of the question of Chief Bell's
pretext, the district court apparently did not consider that by
offering Caughey's bias as a reason for his (the Chief's)
decision, the Chief clearly showed that Ms. Wilson's sex played a
role in his decision, again manifesting his own gender bias
(amply reflected elsewhere in the record). This analytic
omission was most likely a consequence of the court's being
locked into the McDonnell Douglas framework.
We have serious doubts about the related finding by the
district court that the discipline and control of police
officers, rather than of civilian employees, was easier for Chief
Bell. It was claimed a civilian could be disciplined only by the
Township Manager. There was evidence, however, that Chief Bell
was responsible for assigning all Ms. Wilson's duties and that
she was accountable only to him. For instance, Chief Bell was
the only one who could authorize overtime for Ms. Wilson. Chief
Bell had also written Ms. Wilson's prior job descriptions and she
received her orders and duty assignments from him. A police
lieutenant, however, supervised her vacation time. It does not
appear that Ms. Wilson ever gave any cause for disciplinary
concern, except when she took her gender complaint to the
Pennsylvania Human Relations Commission. Then at Chief Bell's
request directed to Mr. Caughey, the Township Manager, Ms. Wilson
was terminated. Conversely, it appears Chief Bell did not have
complete disciplinary control over police officers. He could
suspend an officer for up to thirty days, but only the Board of
Commissioners could demote or terminate a police officer. It is
unconvincing that discipline was so vital to Chief Bell in a
department where discipline seems to have been so seriously
lacking, particularly in an area as important as sexual
harassment. Viewing all of this in context, admittedly from the
record and not with the benefit of having been the trial judge,
we have serious doubts about the finding that this remaining
proffered reason was not as pretextual as the others. However,
regardless of that finding, clearly erroneous or not, in our view
the applicable prevailing law was not applied.
We appreciate that this area of the law has not always
been easy to ascertain or to apply. Miller v. Cigna Corp., 47
F.3d 586 (3rd Cir. 1995), an en banc decision, is helpful and
instructive. Miller, however, came too late to assist the
district judge in the present case. Miller is an Age
Discrimination in Employment Act (ADEA) case, not a sex
discrimination case, but the Miller court makes clear the obvious
relationship between Title VII's prohibited prejudices and the
ADEA, which follows Title VII jurisprudence. Id. at 592. Miller
then elaborates upon the distinction between pure "pretextual"
cases and "mixed motives" cases as enunciated in Price-Waterhouse
v. Hopkins, 490 U.S. 228 (1989). Id. at 593-94. In Price-
Waterhouse, it is explained that the familiar rules about the
burden of production and persuasion found in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 284 (1981), are not to be applied in
all situations. A distinction is made between "pretextual"
cases, like McDonnell Douglas and Burdine, and a "mixed motives"
case such as Price-Waterhouse. The "mixed motives" distinction
drawn in Price-Waterhouse and explained in Miller requires the
application of different rules:
The [Price-Waterhouse] Court held that, in cases where
the plaintiff offers "direct evidence" of unlawful
discrimination and the evidence as a whole permits a
conclusion that both permissible and impermissible
considerations played a role in the employer's
decision, the plaintiff need only show that the
unlawful motive was a substantial motivating factor in
that decision. If the finder of fact concludes that
the plaintiff has carried this burden, the burden of
persuasion shifts to the defendant to prove that the
unlawful motive was not a but-for cause, i.e., that the
same action would have been taken, because of
legitimate considerations, in the absence of the lawful
motive.
Miller, 47 F.3d at 594.
The holding in Price-Waterhouse, applicable here, is
succinctly summed up by the Supreme Court:
We hold that when a plaintiff in a Title VII case
proves that her gender played a motivating part in an
employment decision, the defendant may avoid a finding
of liability only by proving by a preponderance of the
evidence that it would have made the same decision even
if it had not taken the plaintiff's gender into
account.
Price-Waterhouse, 490 U.S. at 258.
In a case, however, which does not qualify for the
burden shifting provision of Price-Waterhouse the plaintiff "must
prove by a preponderance of the evidence that age [sex] played a
role in the employer's decisionmaking process and that it had a
determinative effect on the outcome of that process." Miller, 47
F.3d at 598. That is the burden applied by the district court to
Ms. Wilson, but her burden in a mixed motives case is not that
heavy.
It is of no moment that the plaintiff in the present
case was found not to have shown that all the defendants'
proffered reasons were in fact pretext. Her burden is not so
exclusively defined. The district court citing St. Mary's Honor
Center v. Hicks, ___ U.S. ___, 113 S. Ct. 2742 (1993), put all
the burden of persuasion on Ms. Wilson. As Miller points out,
however, St. Mary's is a pretextual and not a mixed motives case.
Miller, 47 F.3d at 596.
In consideration of all the circumstances, we view this
as clearly a mixed motives case based upon the findings of the
district court. The record clearly goes beyond "stray remarks"
and evinces strong gender bias in the police department,
including on the part of Chief Bell. This evidence, which
included "conduct or statements by persons involved directly
reflecting the discriminatory attitude," Starceski v.
Westinghouse Elec. Corp., Nos., 94-3182 & -3208, typescript at 9
(3d Cir. 1995) (internal quotation marks omitted), goes far
beyond the weaker inference of improper motive raised by the
plaintiff's prima facie case under the pretext framework and
constitutes "direct evidence" of discriminatory animus, see
Starceski typescript 9 n.5; Mardell v. Harleysville Life Ins.
Co., 31 F.3d 1221, 1225 n.6 (3d Cir. 1994), cert. granted &
judgment vac'd for reconsideration on other grounds, 115 S. Ct.
1397 (1995). Based on this evidence, we conclude that Chief
Bell's bias was a substantial motivating factor in the promotion
decision and meets the first hurdle required by Price-Waterhouse.
The district court must, however, further determine whether the
evidence showed that Chief Bell would have made the same
promotion decision even in the absence of his improper motive;
the risk of non-persuasion in that determination would rest with
Chief Bell. On this record, the failure to judge this case as a
mixed motives case is legal error, and the case must be reversed
and remanded for further proceedings in order to apply the Price-
Waterhouse standard as further explained in Miller.
REVERSED AND REMANDED.
______________________