Smith v. Pepersack

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELIZABETH E. SMITH,
Plaintiff-Appellee,

v.

ROBERT G. PEPERSACK, SR.; J.
No. 98-1842
PATRICK OGLE; ANNE ARUNDEL
COUNTY SHERIFF'S OFFICE; ANNE
ARUNDEL COUNTY, MARYLAND,
Defendants-Appellants.

ELIZABETH E. SMITH,
Plaintiff-Appellant,

v.

ROBERT G. PEPERSACK, SR.; J.
No. 98-1843
PATRICK OGLE; ANNE ARUNDEL
COUNTY SHERIFF'S OFFICE; ANNE
ARUNDEL COUNTY, MARYLAND,
Defendants-Appellees.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-95-2203-MJG)

Argued: May 6, 1999

Decided: September 24, 1999

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Bruce Rosenblatt, Assistant Attorney General,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL
SERVICES, Baltimore, Maryland; John Francis Breads, Jr., Senior
Assistant County Attorney, OFFICE OF LAW, Annapolis, Maryland,
for Appellants. William Michael Ferris, KRAUSE & FERRIS,
Annapolis, Maryland, for Appellee. ON BRIEF: J. Joseph Curran,
Jr., Attorney General of Maryland, DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONAL SERVICES, Baltimore, Mary-
land; Phillip F. Scheibe, County Attorney, OFFICE OF LAW, Annap-
olis, Maryland, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On the claim of Elizabeth Smith, a deputy sheriff in Anne Arundel
County, Maryland, based on gender discrimination and sexual harass-
ment, filed against Robert Pepersack, former Sheriff of Anne Arundel
County, and J. Patrick Ogle, former Undersheriff, a jury returned a
verdict in favor of Smith in the total amount of $30,100. On the
defendants' appeal challenging the sufficiency of the evidence and
Smith's cross-appeal challenging the district court's dismissal of
Anne Arundel County and the adequacy of damages, we affirm.

I

Elizabeth Smith graduated second in her class at the police acad-
emy and was hired as a deputy sheriff in Anne Arundel County in

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1988. Before that, she served four years in the military, including
three years in the Military Police Force. When she became a deputy
sheriff in 1988, she was one of three female deputies in a 25-30 mem-
ber department, and she was the first deputy hired under the County's
merit system.

In November 1990, Robert G. Pepersack was elected Sheriff of
Anne Arundel County, and he appointed J. Patrick Ogle as his Under-
sheriff. Beginning several months later, Smith began to experience
comments and adverse treatment by Pepersack and Ogle which she
claims were based on her gender. Smith contends that this conduct
continued until 1994 when Pepersack lost his bid for re-election.

On July 28, 1995, Smith filed this action under 42 U.S.C. § 1983,
Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e-5, and
Maryland state law,1 alleging gender discrimination and sexual
harassment and naming as defendants Pepersack, Ogle, Anne Arundel
County, and "the Sheriff's Office of Anne Arundel County." The dis-
trict court dismissed the "Sheriff's Office of Anne Arundel County"
because, under Revene v. Charles County Commissioners, 882 F.2d
870 (4th Cir. 1989), the "Sheriff's Office" was not an entity capable
of being sued. It also granted Anne Arundel County's motion for
summary judgment because Smith had not alleged "any direct actions
on the part of the County," and the County was not an "employer" of
the deputies as required by Title VII because under Maryland law the
Sheriff's office is a "hybrid entity, with ties to both the State and the
county in which it is located." The court also determined that the
County could not be liable under § 1983 because the Sheriff acted on
behalf of the State rather than the County in making personnel deci-
sions, and even if the Sheriff acted for the County, Smith had not
shown that he had the requisite final policymaking authority.

Plaintiff attempted to keep the County in the suit by filing a motion
for reconsideration and a motion seeking leave to amend her com-
plaint to add allegations specific to the County's relationship with the
Sheriff and deputies, but the court denied both motions. It concluded
first that reconsideration was not warranted because the affidavit
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1 Because Smith voluntarily dismissed the state law claims at trial, they
are not relevant to this appeal.

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Smith submitted to establish the County's role in hiring deputies was
based on information that had been "readily available" to her when
the County filed its summary judgment motion. Accordingly, the
court found that the proposed amendments to the complaint were "en-
tirely unnecessary and justice would not be served by granting leave
to amend."

The case proceeded to trial against the two remaining defendants,
Pepersack and Ogle, and Smith presented the following evidence
against them, covering a period from 1991 through 1994.

In September 1991, Smith witnessed Ogle loudly berate an officer
in her chain of command for an alleged breach of courthouse security.
After Smith met with Pepersack several days later, at his request, to
discuss the incident, Ogle accused Smith of jumping the chain of
command and told her that "[she] would learn not to f--- with him.
That he would make [her] life miserable, and that [she] would learn
who the boss was in the Sheriff's office."

Later in the fall of 1991, when Smith, as the Officer-in-Charge in
the lockup area, was working with a trainee, she released an inmate
who should not have been released based on an undiscovered error by
the trainee. According to Smith, when Ogle arrived on the scene, he
laughed at her and said "I got you now, Ms. Smith." As a result of
the incident, Smith was stripped of her "sergeant stripes" and told she
was being transferred. Smith testified that Ogle told her to "be a good
girl and go over to [Domestic Relations] and to do a good job and he
would give me my sergeant stripes back when I learned how to act
more like a man."

While Smith was working in the Domestic Relations department,
Pepersack and Ogle closely monitored her performance through her
supervisor. She characterized her working environment as follows:

I was starting to realize that no matter what I did, no matter
how hard I worked, that it wasn't going to make any differ-
ence in their eyes. That the work environment had become
so unpleasant. Their comments were demeaning. Their
stance when they would talk to you, it was very unpleasant

4
 and very uncomfortable, I had never been in an environment
like that before.

Once, when Ogle saw Smith take her wallet out of her pants pocket,
he remarked that it was "obvious" she wanted to be a man because
she carried a wallet.

In the spring of 1993, when Smith was an acting lieutenant, she
applied for one of two open lieutenant positions. Because deputies
were part of the County's merit system, the county personnel office
compiled a list of qualified candidates, ranking them in accordance
with the results of tests and interviews, and submitted it to the Sheriff.
Although the Sheriff was entitled to promote from the list in his dis-
cretion, the Sheriff's general practice was to promote in order from
the top of the list. At that time, Smith was ranked third on the list, and
Pepersack promoted the two (male) individuals ranked ahead of her.

Smith then arranged a meeting with Pepersack to determine how
to better her chances for promotion. As Smith left the meeting, Ogle
accosted her and told her that her visit to Pepersack was "exactly why
she would never get promoted" because "all[she] did was whine and
cry like we women do" and that she did not know how to "take it like
a man."

When the next round of promotion opportunities was announced in
August 1993, Smith again applied. This time, she was ranked first on
the County's merit list. Nevertheless, Pepersack promoted two male
deputies ranked below her, one of whom had recently been required
to complete sensitivity training as a result of an earlier sexual harass-
ment investigation. Pepersack testified that he did not promote the
plaintiff because she only performed well when she liked her task.
Her official evaluations, however, were all 1's and 2's, with 1 being
the highest score on a 4-point scale. Her evaluations also included
additional notations that her performance in various areas was "out-
standing" and "significantly better than the standard."

Ogle brought Smith the news that she had been bypassed for the
promotion even though she was ranked first on the County's promo-
tion list. When Smith mentioned the top-down promotion custom,
Ogle responded that he was the boss, she was not getting promoted,

5
and she should "stop whining and crying and take it like a man." Ogle
admonished her to be a "good girl" and "keep [her] mouth shut," and
he would consider a future promotion.

Several months later, in April 1994, Ogle transferred Smith from
the Administration Bureau (where she had been acting supervisor
while the supervisor was away on a three month assignment) to the
Warrant Squad. In May 1994, on orders from Captain Nelson, the
head of the Warrant Squad, Lieutenant Czorapinski informed Smith
that she was to be the "first through the door" on every warrant
served. Czorapinski testified that when Nelson gave him the order, he
thought it "odd" and "very peculiar," but that Nelson specifically told
him that it was "what Ogle wanted." He also testified that there was
joking that Smith was prone to getting hurt and that Nelson and Ogle
had a bet on how long it would take her to get hurt in the Warrant
Squad. Although service of warrants had rarely resulted in injury,
being first through the door was the most vulnerable and dangerous
position, and Smith interpreted Nelson's order as intending to cause
her physical harm.

On consideration of this evidence, the jury returned a verdict in
favor of Smith on both questions posed on the special verdict sheet:
(1) whether plaintiff proved gender discrimination in the terms and
conditions of her employment and (2) whether plaintiff proved the
existence of a hostile work environment. The jury found specifically
that gender played a motivating role in denying her a promotion. The
jury awarded Smith $5,100 in compensatory damages against Peper-
sack and Ogle, jointly and severally, and $25,000 in punitive dam-
ages, $12,500 against each defendant.

The district court denied the defendants' motion to alter or amend
the judgment for insufficiency of the evidence, as well as the plain-
tiff's motion for a new trial on damages.

Both parties have appealed.

II

On their appeal, the defendants contend that the evidence was
insufficient to support the jury's finding of gender-based discrimina-

6
tion, the jury's finding of a hostile work environment, and the jury's
award of punitive damages.

In reviewing a judgment for the sufficiency of evidence, we "view
the evidence in the light most favorable to the party against whom the
motion is made, giving that party the benefit of all reasonable infer-
ences from the evidence. We may not weigh the evidence, pass on the
credibility of the witnesses, or substitute our judgment of the facts for
that of the jury." Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336,
351 (4th Cir. 1994) (internal quotation marks and citation omitted).
We review de novo the denial of a motion for judgment as a matter
of law. See Konkel v. Bob Evans Farms, Inc., 165 F.3d. 275, 279 (4th
Cir. 1999).

As an initial matter, we agree with the defendants that if the jury
verdict is to stand, it must be on the basis of 42 U.S.C. § 1983 rather
than Title VII. Smith sued Pepersack and Ogle in their individual
capacities and not their official capacities, and therefore they can only
be Smith's supervisors and not her "employer" under Title VII. As we
have held, "supervisors are not liable in their individual capacities for
Title VII violations." Lissau v. Southern Food Serv., Inc., 159 F.3d
177, 180 (4th Cir. 1998). As defendants concede, however, if Smith
demonstrated the existence of intentional gender discrimination unre-
lated to the needs of her position or the existence of what would con-
stitute a hostile work environment under Title VII, she would
establish a violation of the Fourteenth Amendment which could be
remedied under § 1983. See Beardsley v. Webb, 30 F.3d 524, 529 (4th
Cir. 1994).

Considering the evidence in the light most favorable to Smith, we
conclude that the jury had sufficient evidence to determine that Smith
was intentionally denied the August 1993 promotion based on gender
in violation of the Fourteenth Amendment. When Smith applied for
the promotion, she was ranked first on the list that the County com-
piled. Contrary to Pepersack's testimony that her performance was
"lacking," Smith's evaluations were consistently all 1's and 2's, and
they included extra commentary by her supervisors noting her "out-
standing" performance. In addition, Smith testified that the Sheriff's
usual practice was to promote from the top of the list, even though
he technically had the discretion to do otherwise. In fact, in the prior

7
round of promotions, Smith did not receive a promotion because the
Sheriff adhered to this policy and promoted the two individuals ran-
ked ahead of her on that list.

Despite these objective indicators of Smith's merit and despite the
Sheriff's usual promotion practice, Smith was bypassed for a promo-
tion when Pepersack chose to promote two male deputies ranked
below her on the list. Moreover, when Ogle approached Smith to
break the news that she had been passed over, he continued his pat-
tern of gender-based remarks, chastising her to"stop whining and cry-
ing and take it like a man" and to be a "good girl" and "keep [her]
mouth shut," and he would consider a future promotion. These com-
ments matched other comments made by Ogle in conjunction with
employment decisions that affected Smith. When she was denied the
earlier promotion, Ogle told her that she would never get promoted
because "all [she] did was whine and cry like . . . women do," and
she needed to learn to "take it like a man." When she was transferred
to the Domestic Relations department after an error occurred on her
watch in the lockup, Ogle announced that if she were"a good girl,"
maybe she could get her sergeant stripes back. If the jury chose to
credit Smith's testimony, it had ample evidence from which to con-
clude that the denial of the promotion was improperly motivated by
gender. Therefore, we must sustain the jury's verdict under § 1983.

III

The defendants also argue that punitive damages were unjustified
because, apart from the evidence that supported the violation itself,
Smith failed to show sufficient evidence of malicious conduct.

Because, as defendants themselves have argued, liability in this
case can only rest on 42 U.S.C. § 1983, rather than Title VII, we look
to § 1983 for the appropriate punitive damages standards. The
Supreme Court held in Smith v. Wade, 461 U.S. 30, 56 (1983), that
"a jury may be permitted to assess punitive damages in an action
under § 1983 when the defendant's conduct is shown to be motivated
by evil motive or intent, or when it involves reckless or callous indif-
ference to the federally protected rights of others." (Emphasis added);
see also Cooper v. Dyke, 814 F.2d 941, 948 & n.5 (4th Cir. 1987)
(noting that the Supreme Court in Smith"specifically held that there

8
is no requirement that the standard for punitive damages be higher
than the standard for determining liability"). Moreover, in considering
the circumstances under which punitive damages are appropriate in
the Title VII context under 42 U.S.C. § 1981a(b)(1), the Supreme
Court recently reaffirmed the vitality of Smith , applied it to the § 1981
context because Congress relied on Smith in drafting §1981, and elab-
orated on the meaning of the terms "malice" and "reckless indiffer-
ence." See Kolstad v. American Dental Ass'n , 119 S. Ct. 2118, 2124
(1999) (observing that the "terms `malice' or`reckless indifference'
pertain to the [defendant's] knowledge that it may be acting in viola-
tion of federal law, not its awareness that it is engaging in discrimina-
tion"). Rejecting the conclusion that "eligibility for punitive damages
can only be described in terms of [a defendant's] `egregious' miscon-
duct," the Court in Kolstad held that"[t]he terms `malice' and `reck-
less' ultimately focus on the actor's state of mind," making a showing
of egregious or outrageous discrimination unnecessary. Id. Thus,
because the jury's finding of a constitutional violation under § 1983
necessarily encompasses a finding of intentional discrimination,
Smith need not also demonstrate, as defendants suggest, that the con-
duct was particularly egregious or malicious.

The Court in Kolstad did observe that the mere existence of a civil
rights violation is not a guarantee of eligibility for punitive damages
because a defendant might not be aware of the federal law he violated
or he might have honestly believed that the discrimination was per-
missible. See id. at 2125. These exceptions, however, do not apply to
either Pepersack or Ogle in this case. They simply cannot argue that
they were unaware of the federal prohibition of sex discrimination in
the workplace. Nor have defendants contended that, while they did
deny Smith a promotion because she was female, the denial was justi-
fied for a legitimate, work-related reason. Because the jury had
enough evidence from which to conclude that both defendants were
involved in the decision to deny the promotion and both were moti-
vated by gender, plaintiff has adduced sufficient evidence to demon-
strate "reckless or callous indifference" to federally protected rights
and to permit the jury to award punitive damages. 2
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2 The defendants rely heavily on Lowery v. Circuit City Stores, Inc.,
158 F.3d 742, 765-66 (4th Cir. 1998) (interpreting 42 U.S.C. § 1981 to

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IV

On her appeal, Smith contends first that the district court improp-
erly dismissed the County as a defendant. We disagree. In attempting
to establish municipal liability under § 1983, Smith did not allege an
official policy or custom which led to the discriminatory conduct
towards her. Nor did she allege specific facts in opposition to sum-
mary judgment that demonstrated that either Pepersack or Ogle was
a final policymaker for the County in personnel matters. Similarly, as
to the Title VII claim, Smith failed to submit, in a timely fashion, affi-
davits or other materials to generate a question of fact as to whether
the County's exercise of authority and control over employment of
deputies was sufficient to establish the County as her "employer" for
Title VII purposes. See Fed. R. Civ. P. 56(e).

Smith also challenges (1) the district court's denial of her motions
to reconsider the summary judgment in favor of the County and to
permit her to amend her complaint; (2) the district court's response
to a question from the jury as to who would pay the judgment; and
(3) the district court's denial of her motion for a new trial because of
an inadequacy of damages. After considering the record and Smith's
arguments on each of these contentions, we find them without merit.

Accordingly, the judgment of the district court is

AFFIRMED.
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require the plaintiff to show malice beyond that required for the civil
rights violation itself in order to be entitled to punitive damages). We
note, however, that the Supreme Court has granted certiorari, vacated the
judgment in Lowery, and remanded to this court for further consideration
in light of Kolstad. See Lowery, No. 98-972, 67 U.S.L.W. 3409 (June 24,
1999).

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