Kimberlie Webb v. City of Philadelphia

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

4-7-2009

Kimberlie Webb v. City of Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 07-3081

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-3081

KIMBERLIE D. WEBB,
Appellant

v.

CITY OF PHILADELPHIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 05-cv-5238
(Honorable Harvey Bartle III)

Argued September 9, 2008
Before: SCIRICA, Chief Judge,
McKEE and SMITH, Circuit Judges.

(Filed: April 7, 2009)
JEFFREY M. POLLOCK, ESQUIRE (ARGUED)
ABBEY T. HARRIS, ESQUIRE
Fox Rothschild LLP
Princeton Pike Corporate Center, Building 3
997 Lenox Drive
Lawrenceville, New Jersey 08648

SEVAL YILDIRIM, ESQUIRE
Whittier Law School
3333 Harbor Boulevard
Costa Mesa, California 92626
Attorneys for Appellant

ELEANOR N. EWING, ESQUIRE (ARGUED)
City of Philadelphia Law Department
One Parkway
1515 Arch Street, 17th Floor
Philadelphia, Pennsylvania 19102
Attorney for Appellee

JOHN S. GHOSE, ESQUIRE
FRED T. MAGAZINER, ESQUIRE
Dechert LLP
Cira Centre , 18th Floor
2929 Arch Street
Philadelphia, Pennsylvania 19104
Attorneys for Amici Curiae/Appellant,
American Civil Liberties Union of Pennsylvania,

2
 American Civil Liberties Union,
Council on American Islamic Relations,
Majlis Ash'Shura, American Muslim Law
Enforcement Officers Association,
Islamic Society of North America,
Muslim Public Affairs Council,
Muslim Alliance in North America,
Muslim American Society Freedom Foundation,
The Sikh Coalition, and Shalom Center

OPINION OF THE COURT

SCIRICA, Chief Judge.

In this employment discrimination case, the issue on
appeal is whether a police officer’s request to wear religious
garb with her uniform could be reasonably accommodated
without imposing an undue burden upon the City of
Philadelphia. On the facts presented, the District Court held it
could not. Webb v. City of Philadelphia, No. 05-5283, 2007
U.S. Dist. LEXIS 46872 (E.D. Pa. June 27, 2007). We agree.

I.

Kimberlie Webb is a practicing Muslim, employed by the
City of Philadelphia as a police officer since 1995. On February

3
11, 2003, Webb requested permission from her commanding
officer to wear a headscarf while in uniform and on duty. The
headscarf (a khimar or hijaab) is a traditional headcovering worn
by Muslim women. Webb’s headscarf would cover neither her
face nor her ears, but would cover her head and the back of her
neck. Her request was denied in view of Philadelphia Police
Department Directive 78, the authoritative memorandum which
prescribes the approved Philadelphia police uniforms and
equipment. Nothing in Directive 78 authorizes the wearing of
religious symbols or garb as part of the uniform.1

On February 28, 2003, Webb filed a complaint of
religious discrimination under Title VII of the 1964 Civil Rights
Act, 42 U.S.C. § 2000e-2(a)(1), with the Equal Employment
Opportunity Commission (EEOC) and the Pennsylvania Human
Relations Commission. On August 12, 2003, while the matter
was pending before the EEOC, Webb arrived at work wearing
her headscarf. She refused to remove it when requested and was
sent home for failing to comply with Directive 78. The next two
days’ events were indistinguishable: Webb arrived at work in
her uniform and her headscarf, which she refused to remove,

1
Directive 78 restricts what constitutes a permissible police
officer uniform in specific detail. According to Philadelphia
Police Commissioner Sylvester Johnson, “[o]ur dress code is
very, very strict. . . . And it specifically tells you the things that
you can wear. If those things are not on there, then it is
prohibited based on our Directives.”

4
and was then sent home. On August 14, Webb was informed
her conduct could lead to disciplinary action. Thereafter, she
reported to work without a headscarf. Disciplinary charges of
insubordination were subsequently brought against Webb,
resulting in a temporary thirteen-day suspension.

On October 5, 2005, Webb brought suit against the City
of Philadelphia,2 asserting three causes of action under Title
VII—religious discrimination, retaliation/hostile work
environment, and sex discrimination—and one cause of action
under the Pennsylvania Religious Freedom Protection Act
(RFPA), 71 Pa. Stat. Ann. § 2401. The District Court found that
Directive 78 and “[its] detailed standards with no
accommodation for religious symbols and attire not only
promote the need for uniformity, but also enhance cohesiveness,
cooperation, and the esprit de corps of the police force.” Webb,
2007 U.S. Dist. LEXIS 46872, at *11–12. The District Court
held the City would suffer an undue hardship if forced to permit
Webb and other officers to wear religious clothing or
ornamentation with their uniforms. The District Court granted
summary judgment on all claims, finding Webb failed to exhaust
her administrative remedies for the Title VII sex discrimination

2
The Complaint identified three defendants: the City, the
Philadelphia Police Department, and Police Commissioner
Sylvester Johnson. The District Court granted Defendants’
motions to dismiss the Police Department and Commissioner
Johnson as defendants. These orders were not appealed.

5
claim, failed to meet the statutory notice requirements for the
RFPA claim, and failed to raise a genuine issue of material fact
for the Title VII religious discrimination and retaliation/hostile
work environment claims.

Webb appeals only the adverse judgments on the
religious discrimination and sex discrimination claims. She also
raises, for the first time on appeal, certain constitutional claims.
The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291.

“We undertake a plenary review of grants of summary
judgment.” Huber v. Taylor, 469 F.3d 67, 73 (3d Cir. 2006).
“We view all evidence and draw all inferences therefrom in the
light most favorable to the non-movant, affirming if no
reasonable jury could find for the non-movant.” Shelton v.
Univ. of Med. and Dentistry of N.J., 223 F.3d 220, 224 (3d Cir.
2000).

[A]n appellate court may only review the record
as it existed at the time summary judgment was
entered. In reviewing a summary judgment order,
an appellate court can consider only those papers
that were before the trial court. The parties
cannot add exhibits, depositions, or affidavits to
support their position. Nor can they advance new
theories or raise new issues in order to secure a
reversal of the lower court’s determination.

6
Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293
F.3d 120, 126 (3d Cir. 2002) (internal citations omitted).

II.

Title VII of the 1964 Civil Rights Act prohibits
employers from discharging or disciplining an employee based
on his or her religion. 42 U.S.C. § 2000e-2(a)(1). “Religion” is
defined as “all aspects of religious observance and practice, as
well as belief, unless an employer demonstrates that he is unable
to reasonably accommodate to an employee’s . . . religious
observance or practice without undue hardship on the conduct
of the employer’s business.” 42 U.S.C. § 2000e(j). To establish
a prima facie case of religious discrimination, the employee
must show: (1) she holds a sincere religious belief that conflicts
with a job requirement; (2) she informed her employer of the
conflict; and (3) she was disciplined for failing to comply with
the conflicting requirement. Shelton, 223 F.3d at 224. Once all
factors are established, the burden shifts to the employer to show
either it made a good-faith effort to reasonably accommodate the
religious belief, or such an accommodation would work an
undue hardship upon the employer and its business. Id.

Title VII religious discrimination claims often revolve
around the question of whether the employer can show
reasonable accommodation would work an undue hardship.

7
United States v. Bd. of Educ., 911 F.2d 882, 886 (3d Cir. 1990).3
An accommodation constitutes an “undue hardship” if it would
impose more than a de minimis cost on the employer. Trans
World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Both
economic and non-economic costs can pose an undue hardship
upon employers; the latter category includes, for example,
violations of the seniority provision of a collective bargaining
agreement and the threat of possible criminal sanctions. Id. at
83; Bd. of Educ., 911 F.2d at 891.

We focus on the specific context of each case, looking to
both the fact as well as the magnitude of the alleged undue
hardship. Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134
(3d Cir. 1986) (evaluating Volkswagen’s claim of undue
hardship when asked to accommodate a worker whose religious

3
In United States v. Board of Education, suit was filed
against the Philadelphia School District Board of Education
under Title VII “to advance what would more commonly be a
free exercise challenge.” 911 F.2d at 884. The school board,
which employed a teacher who wanted to wear a headscarf, was
subject to Pennsylvania’s Garb Statute, 24 Pa. Stat. Ann. §
11-1112, which prohibits teachers from wearing religious
clothing or symbols. Bd. of Educ., 911 F.2d. at 885. We
determined that to expose the school administration “to a
substantial risk of criminal prosecution, fines and expulsion . .
. would have been an undue hardship on it as it went about the
business of running a school district.” Id. at 891.

8
beliefs required her not to work on Saturdays). We need not
“determine with precision the meaning of ‘undue hardship’
under Title VII.” Bd. of Educ., 911 F.2d at 890. But Hardison
“strongly suggests that the undue hardship test is not a difficult
threshold to pass.” Id.

In Kelley v. Johnson, the Supreme Court characterized a
police department’s “[c]hoice of organization, dress, and
equipment for law enforcement personnel . . . [as] a decision
entitled to the same sort of presumption of legislative validity as
are state choices designed to promote other aims within the
cognizance of the State’s police power.” 425 U.S. 238, 247
(1975). Almost ten years later, in Goldman v. Weinberger, the
Court stated that the “desirability of dress regulations in the
military is decided by the appropriate military officials.” 475
U.S. 503, 509 (1986). The Court also found “the traditional
outfitting of personnel in standardized uniforms encourages the
subordination of personal preferences and identities in favor of
the overall group mission.” Id. at 508.

Our most recent decision in this area is Fraternal Order
of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359
(3d Cir. 1999). In Fraternal Order of Police, we held the
government cannot discriminate between conduct that is
secularly motivated and similar conduct that is religiously
motivated. The Newark police department forbade police
officers from growing beards but granted medical exceptions for
beards as required by the Americans with Disabilities Act, 42
U.S.C. § 12112. Two Muslim police officers, whose religion

9
required they grow beards, filed suit contending their First
Amendment rights were infringed upon by the no-beards policy.
We agreed, holding that the police department must create a
religious exemption to its “no-beards” policy to parallel its
secular one, unless it could make a substantial showing as to the
hypothetical negative effects of a religious exemption.

In a similar case, a sister court of appeals determined “[a]
police department cannot be forced to let individual officers add
religious symbols to their official uniforms.” Daniels v. City of
Arlington, 246 F.3d 500, 506 (5th Cir. 2001). In Daniels, a
police officer refused to remove a gold cross pin on his uniform,
in non-compliance with a no-pins official policy. Id. at 501.
Because the “Supreme Court has upheld appropriate restrictions
on the First Amendment rights of government employees,
specifically including both military and police uniform
standards,” the Court of Appeals for the Fifth Circuit determined
the City’s uniform standards were proper and the City was
unable to reasonably accommodate the officer’s religious needs
without undue hardship. Id. at 503. Other courts have
recognized the interests of a governmental entity in maintaining
the appearance of neutrality. See, e.g., Rodriguez v. City of
Chicago, 156 F.3d 771, 779 (7th Cir. 1998) (Posner, C.J.,
concurring) (“The importance of public confidence in the
neutrality of its protectors is so great that a police department or
a fire department . . . should be able to plead ‘undue hardship’
. . . .”); Paulos v. Breier, 507 F.2d 1383, 1386 (7th Cir. 1974)
(recognizing and protecting the interest of municipality in

10
preserving nonpartisan police force and appearance thereof); see
also United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter
Carriers, 413 U.S. 548, 565 (1973) (“[I]t is not only important
that the Government and its employees in fact avoid practicing
political justice, but it is also critical that they appear to the
public to be avoiding it, if confidence in the system of
representative Government is not to be eroded to a disastrous
extent.”).

III.

The District Court held Webb established a prima facie
case of religious discrimination. We agree. Webb’s religious
beliefs are sincere, her employer understood the conflict
between her beliefs and her employment requirements, and she
was disciplined for failing to comply with a conflicting official
requirement. Thus, the burden shifts and the City must establish
that to reasonably accommodate Webb (that is, allow her to wear
a headscarf with her uniform) would constitute an undue
hardship. The City offered no accommodation, contending any
accommodation would impose an undue hardship.

In the City’s view, at stake is the police department’s
impartiality, or more precisely, the perception of its impartiality
by citizens of all races and religions whom the police are
charged to serve and protect. If not for the strict enforcement of
Directive 78, the City contends, the essential values of
impartiality, religious neutrality, uniformity, and the
subordination of personal preference would be severely

11
damaged to the detriment of the proper functioning of the police
department. In the words of Police Commissioner Sylvester
Johnson, uniformity “encourages the subordination of personal
preferences in favor of the overall policing mission” and
conveys “a sense of authority and competence to other officers
inside the Department, as well as to the general public.”

Commissioner Johnson identified and articulated the
police department’s religious neutrality (or the appearance of
neutrality) as vital in both dealing with the public and working
together cooperatively. “In sum, in my professional judgment
and experience, it is critically important to promote the image of
a disciplined, identifiable and impartial police force by
maintaining the Philadelphia Police Department uniform as a
symbol of neutral government authority, free from expressions
of personal religion, bent or bias.” Commissioner Johnson’s
testimony was not contradicted or challenged by Webb at any
stage in the proceedings.4

4
Amici filed a Brief in Support of Reversal with a
Supplemental Appendix containing articles regarding the
policies and practices of other para-military organizations in the
United States and the world which allow, to various degrees,
religious symbols and garb as part of their uniforms. The City
points out the “blatant hearsay nature” of this material and the
fact it was not presented to the District Court. We do not
consider material on appeal that is outside of the district court
record. In re Capital Cities/ABC, Inc.’s Application for Access

12
 Commissioner Johnson’s reasoning is supported by
Kelley and Goldman. As a para-military entity, the Philadelphia
Police Department requires “a disciplined rank and file for
efficient conduct of its affairs.” Kelley, 425 U.S. at 242
(internal citations omitted); see also Thomas v. Whalen, 51 F.3d
1285, 1291 (6th Cir. 1995) (“A paramilitary law enforcement
unit, such as the police, has many of the same interests as the
military in regulating its employees’ uniforms.”). Commissioner
Johnson’s thorough and uncontradicted reasons for refusing
accommodations are sufficient to meet the more than de minimis
cost of an undue burden. Hardison, 432 U.S. at 84.

Despite Webb’s assertions, Fraternal Order of Police is
distinguishable from this case.5 The focus of Fraternal Order
of Police is the lack of neutrality in applying the no-beards
regulation. As we explained, “the Department’s decision to

to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990).
5
In her opening appellate brief, Webb raises for the first time
her contention that the “scarf policy” in Directive 78 is a secular
exception akin to the medical exception in Fraternal Order of
Police. Directive 78 allows “Scarves – black or navy blue
only,” in a section that also permits sweaters and earmuffs. This
matter was not raised before the District Court. On review of
summary judgment, we generally review only the record and
arguments presented to the District Court. Union Pac. R.R. Co.,
293 F.3d at 126.

13
provide medical exemptions while refusing religious exemptions
is sufficiently suggestive of discriminatory intent.” Fraternal
Order of Police, 170 F.3d at 365. The Philadelphia Police
Department’s Directive 78, by contrast, contains no exceptions,
nor is there evidence the City allows other officers to deviate
from it. In other ways, our decision in Fraternal Order of
Police buttressed the District Court’s opinion. We recognized
that “safety is undoubtedly an interest of the greatest
importance” to the police department and that uniform
requirements are crucial to the safety of officers (so that the
public will be able to identify officers as genuine, based on their
uniform appearance), morale and esprit de corps, and public
confidence in the police. Id. at 366.

Webb argues summary judgment was improper because
there were genuine issues of material fact, pointing to her
affidavit and that of police officer Rochelle Bilal. Both officers
claimed other police officers displayed religious symbols, such
as cross pins on their uniforms, with no disciplinary
repercussions. But neither officer presented any evidence of
“who” or “when,” nor did either know whether the police
department authorized or was even aware of the alleged
occurrences. These blanket assertions with no specific evidence
do not create a genuine issue of material fact. See, e.g., Cloutier
v. Costco Wholesale Corp., 390 F.3d 126, 137 (1st Cir. 2004)
(finding, for these same reasons, evidence identical to the sort
offered by Webb here to be “unpersuasive” in refuting
employer’s assertion of undue hardship and insufficient to

14
defeat summary judgment). The District Court’s grant of
summary judgment was proper.

IV.

Before bringing suit under Title VII in federal court, a
plaintiff must first file a charge with the EEOC. See Hicks v.
ABT Assocs. Inc., 572 F.2d 960, 963 (3d Cir. 1978); Ostapowicz
v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976). The
purpose of this administrative exhaustion requirement is to put
the EEOC on notice of the plaintiff’s claims and afford it “the
opportunity to settle disputes through conference, conciliation,
and persuasion, avoiding unnecessary action in court.” Antol v.
Perry, 82 F.3d 1291, 1296 (3d Cir. 1996); see also Hicks, 572
F.2d at 963. While we have recognized the “preliminary
requirements for a Title VII action are to be interpreted in a
nontechnical fashion,” the aggrieved party “is not permitted to
bypass the administrative process.” Ostapowicz, 541 F.2d at
398. Accordingly, we have held “the parameters of the civil
action in the district court are defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of
the charge of discrimination.” Id. at 398–99.

Webb only filed a charge of religious discrimination with
the EEOC. The District Court found that her sex discrimination
claim fell outside the scope of her religious discrimination claim
or any investigation that reasonably would have arisen from it.
Nothing in Webb’s EEOC claim incorporated sex
discrimination, or provided any indication to the EEOC that its

15
investigation should encompass such a claim. For these reasons,
Webb’s claim of sex discrimination is not sufficiently related to
her religious discrimination claim to give notice or to excuse her
failure to administratively exhaust it. See Antol, 82 F.3d at
1296. Allowing her sex discrimination claim to go forward
would amount to an administrative bypass. We will affirm the
grant of summary judgment with respect to the sex
discrimination claim.

V.

Webb did not raise her constitutional claims until
appellate review. “Generally, failure to raise an issue in the
District Court results in its waiver on appeal.” Huber v. Taylor,
469 F.3d 67, 74 (3d Cir. 2006); see also Singleton v. Wulff, 428
U.S. 106, 120 (1976) (“It is the general rule, of course, that a
federal appellate court does not consider an issue not passed
upon below.”). This general rule serves several important
judicial interests, protecting litigants from unfair surprise, see
Huber, 469 F.3d at 75 (citing Hormel v. Helvering, 312 U.S.
552, 556 (1941)); “promot[ing] the finality of judgments and
conserv[ing] judicial resources,” Richerson v. Jones, 572 F.2d
89, 97 (3d Cir. 1978); and preventing district courts from being
“reversed on grounds that were never urged or argued” before
it, Caisson Corp. v. Ingersoll-Rand Co., 622 F.2d 672, 680 (3d
Cir. 1980). Neither Webb’s first complaint nor her amended
complaint presents a constitutional claim; nor was a

16
constitutional claim raised before the District Court.6

We have recognized that we have “discretionary power
to address issues that have been waived.” Bagot v. Ashcroft,
398 F.3d 252, 256 (3d Cir. 2005); see also Selected Risks Ins.
Co. v. Bruno, 718 F.2d 67, 69 (3d Cir. 1983) (noting that the
decision to address a claim raised for the first time on appeal “is
one of discretion rather than jurisdiction”). But we have limited
our exercise of discretion to cases presenting “exceptional
circumstances.” Selected Risks, 718 F.2d at 69. In Huber, we
indicated exceptional circumstances may exist when we are
presented with “a pure question of law . . . where refusal to
reach the issue would result in a miscarriage of justice or where
the issue’s resolution is of public importance.” 469 F.3d at
74–75 (quoting Loretangeli v. Critelli, 853 F.2d 186, 189-90 n.5
(3d Cir. 1988)). We are not presented with a pure question of
law here, nor are we faced with exceptional circumstances. We
do not reach the merits of Webb’s constitutional claims.

6
The District Court did not address constitutional claims
because none were raised. The District Court cited Goldman and
Kelley in its opinion to elucidate its Title VII analysis, not to
perform a separate constitutional analysis. The mere reference
in the parties’ briefs and the District Court’s opinion to
Goldman and Kelley when addressing the Title VII claim did not
put the City or the court on notice that any independent
constitutional claims were being raised.

17
 The District Court correctly concluded the City would
suffer undue hardship under Title VII if required to grant
Webb’s requested religious accommodation. We will affirm the
judgment of the District Court.

18