Revised January 20, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 97-20602 _______________
PATRICE SHARP,
Plaintiff-Appellee,
VERSUS
CITY OF HOUSTON; ET AL
Defendants,
CITY OF HOUSTON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Southern District of Texas _________________________
January 12, 1999
Before KING, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The City of Houston appeals a judgment entered on a jury
verdict in favor of Patrice Sharp, a former Houston Police
Department (“HPD”) officer, for sexual harassment and retaliation.
Finding no reversible error, we affirm. I.
Sharp was one of about fourteen officers assigned to Mounted
Patrol, an elite horse-mounted unit stationed several miles from
downtown Houston and police headquarters. Mounted Patrol
maintained a strict paramilitary chain of command. There were two
sergeants: Edgar Bice, who was Sharp's immediate supervisor, and
Jimmy Brown. In 1991, Lieutenant Wayne Hankins was given charge of
Mounted Patrol, supervising the two sergeants. He reported to the
Special Operations Commander, Captain Dale Brown, who reported to
Assistant Chief Dennis Stormski, who reported to Chief Sam Nuchia.
Everyone assigned to Mounted Patrol, including Hankins and the
sergeants, was based at Mounted Patrol headquarters. The persons
with higher levels of authority, however, were located at HPD
headquarters downtown. Because of the unit's physical isolation,
and because its duties did not overlap significantly with those of
other units, Hankins retained almost absolute control over the
unit's operations, subject only to minimal supervision by Captain
Brown.
Shortly after Hankins took charge, he and Bice began sexually
harassing Sharp, making frequent and demeaning comments about her
body, making her the object of lewd jokes and gestures, and
generally mistreating her in a manner that was not directed at male
officers. On one occasion, Bice announced in front of over one
2 hundred officers and police cadets that Sharp “needs to be in a wet
T-shirt contest.” He often referred to Sharp's breasts as
“headlights” and, on one occasion, as Sharp walked toward him and
several other officers, he yelled, “I see those headlights coming!”
When Sharp would bend over to pick up equipment, Bice, while
swiveling his hips, would shout out, “hold that position, gal.”
When Sharp requested time off, Bice often joked that he had keys to
a motel room where they could go to “discuss the matter.” He often
commented that the couch in his office folded out into a bed, and
invited her to come in and close the door. He once told Sharp that
he would approve her vacation request if she brought back pictures
of herself on a nude beach, and once suggested that Sharp and
another female officer tell others that they had engaged in a
sexual threesome with him.
Hankins not only failed to stop Bice's harassment but engaged
in harassment himself. His favorite occasion for harassment was
the daily roll call, at which all officers were required to be
present. He often told filthy jokes at roll call, which derived
their adolescent, shock-value “humor” from their graphic references
to female and male sex organs, breasts, excretory functions,
masturbation, and various sex acts.
On one occasion, during roll call, Hankins walked up to Sharp
and unzipped his pants, placing his crotch inches from her face.
He capped off the “joke” by making a reference to oral sex. When
Sharp asked job-related questions, on several occasions Hankins
3 grabbed his crotch and shook it, inviting her to “chew on this.”
Almost universally, Hankins and Bice made their lewd jokes,
comments, and gestures in the presence of other officers.
Although Sharp made it apparent that she did not find the
jokes or comments funny, and that she did not care for the
treatment Hankins and Bice afforded her, she never formally
complained to Bice, Hankins, or Captain Brown, nor to HPD's
Internal Affairs Division (“IAD”) or the mayor's affirmative action
office. Because her direct supervisor and his supervisor were the
ones harassing her, she believed it would have been useless to
complain to them. She was chilled from going to IAD, and she
presented evidence that any officer who complained about another
officer inevitably suffered for it, socially and professionally.
Hankins's and Bice's misconduct came to light in 1993 only as
a result of an internal investigation.1 When Sharp was ordered to
provide information as part of that inquiry, she told the
investigator of Hankins's and Bice's harassment. That
investigation soon was upgraded to a full IAD review, and Hankins
and Bice ultimately were found to have engaged in sexual harassment
and other HPD rules violations.
As soon as the investigation of Bice and Hankins became a
full-blown IAD matter, they were transferred from Mounted Patrol
1 That investigation was initiated when Bice turned in another officer for insubordination, and that officer counter-charged various incidents of misconduct against Bice and Hankins.
4 pending the investigation's conclusion. Those transfers later
became permanent, and both were suspended without pay for ninety
days. Sergeant Brown was reprimanded for failing to report the
misconduct of which he had been aware and for initially denying
that the harassment had occurred.
During and after her participation in the IAD investigation of
Bice and Hankins, Sharp was subjected to retaliation by fellow
officers for breaking the “code of silence,” a custom within HPD of
punishing officers who complain of other officers' misconduct or
who truthfully corroborate allegations of misconduct.
Specifically, Sharp alleged that
(1) she was shunned, badmouthed, and socially ostracized by her fellow officers;
(2) someone removed her name from an overtime sign-up sheet at Mounted Patrol;
(3) her tack was vandalized on one occasion in such a way that it could have caused her injury;
(4) her Mounted Patrol colleagues did not immediately come to her assistance when informed that she had a car accident on the way to work;
(5) a roll call was held outside her presence; and
(6) HPD and IAD did not punish Hankins or Bice, nor the officers who came to their defense against Sharp's allegations, severely enough.
Sharp sought relief from Sergeant Chapman, the new day shift
supervisor at Mounted Patrol. She apprised him of the acts of
retaliation taken by her colleagues, but he took no corrective
action. Although he dutifully reported some of the retaliation to
5 his superiors, he often responded to Sharp by minimizing the
retaliationSS“laughing it off” and telling her not to worry about
itSSand he even openly blamed her for embarrassing the unit and for
causing strife within it.2
Nuchia personally spoke with Sharp, expressed his awareness of
and sympathy for her situation, and stated that he had changed all
the supervision at Mounted Patrol and expected that to remedy the
problem. Captain Brown personally attended several Mounted Patrol
roll calls, demanded professionalism in response to the
investigation, and stated that inappropriate behaviorSSincluding
acts of retaliationSSwould not be tolerated.
The retaliation continued, however, and in February 1994,
Sharp requested a transfer to an available position in a less
prestigious duty station, the Police Academy; her request was
granted.
II.
Sharp sued the city, Hankins, and Bice, alleging, inter alia,
sexual harassment and retaliation under title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and retaliation for
exercise of her First Amendment rights under 42 U.S.C. § 1983. The
2 Mary Alice Jones, Mounted Patrol's administrative assistant, testified regarding the retaliation, open discussions of plans to lie, and Chapman's role in failing to correct the retaliation and in blaming Sharp for the problems. Jones was offered a transfer from Mounted Patrol to remove her from harassment she had suffered; Sharp and Jones cite the transfer as part of HPD's ongoing enforcement of the code of silence, driving Jones from the elite division.
6 court granted the city’s motion for summary judgment on the
title VII retaliation claim. The parties consented to trial before
a magistrate judge (whom we refer to as the “court” or the
“district court”), and Sharp prevailed on all remaining claims
against all defendants.
The jury awarded compensatory damages against the city of
$10,000 for harassment and $100,000 for retaliation. Against Bice
and Hankins each, the jury awarded $10,000 punitive and $5,000
compensatory damages.3 At the close of all the evidence, the city
moved for judgment as a matter of law (“j.m.l.”), and it now
challenges the denial of that motion and the final judgment.
III.
The evidence easily suffices to support the verdict that Sharp
was sexually harassed and can recover under title VII therefor.4
The substantial issues are whether the city may be held liable for
Hankins's and Bice's harassment and whether Sharp can recover for
retaliation under § 1983.
A.
We review a denial of j.m.l. de novo. See Texas Farm Bureau
3 The judgments against Bice and Hankins are not at issue in this appeal.
4 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
7 v. United States, 53 F.3d 120, 123 (5th Cir. 1995). We view all
evidence and reasonable inferences in favor of the non-movant; if
reasonable persons could differ in their interpretation of the
evidence, j.m.l. should be denied. Only if the facts and
reasonable inferences are such that reasonable jurors could not
reach a contrary verdict may the court properly enter a j.m.l.
See id.
B.
There are two paths by which Sharp may seek to impute
liability to the city for Hankins's and Bice's harassment. The
most obvious one is vicarious liability for acts, the commission of
which were “aided . . . by the existence of the agency relation.”
See Faragher v. City of Boca Raton, 524 U.S. ___, ___, ___-___,
118 S. Ct. 2275, 2290, 2292-93 (1998) (quoting RESTATEMENT (SECOND) OF
AGENCY § 219(2)(d) (1957)); see also Burlington Indus. v. Ellerth,
524 U.S. ___, ___, 118 S. Ct. 2257, 2270 (1998).
This case was tried prior to the articulation of the new
standard in Faragher and Burlington, so the court made no factual
findings on vicarious liability. The jury was presented with only
a negligence theory; because we affirm on that theory, we need not
comment extensively on the Supreme Court’s most recent
pronouncements.
8 C.
Sharp argues that the city is liable for its negligent failure
to discover and remedy the harassment. The jury found liability in
negligence, so our task is to determine whether that verdict is
supported by the evidence and as a matter of law.
An employer may be liable for sexual harassment if it “knew or
should have known of the harassment in question and failed to take
prompt remedial action.” Williamson v. City of Houston, 148 F.3d
462, 464 (5th Cir. 1998). This standard was not disturbed by
Faragher or Burlington. “[A]n employer can be liable . . . where
its own negligence is a cause of the harassment. An employer is
negligent with respect to sexual harassment if it knew or should
have known about the conduct but failed to stop it.” Burlington,
524 U.S. at ___, 118 S. Ct. at 2267. Generally, the negligence
standard governs employer liability for co-worker harassment. See
Williamson, 148 F.3d at 464.5 The concept of negligence thus
imposes a “minimum standard” for employer liabilitySSdirect
liabilitySSunder title VII, see Burlington, 524 U.S. at ___,
118 S. Ct. at 2267, a standard that is supplemented by the agency-
based standards for vicarious liability as articulated in Faragher
and Burlington.
The city does not dispute that the jury was properly
5 See also Faragher, 524 U.S. at ___, 118 S. Ct. at 2289 (noting that the circuits uniformly have applied a negligence standard to title VII cases involving harassment by co-workers).
9 instructed on negligence. Our task, then, is to determine whether
a reasonable jury could have found that the city knew or, through
the exercise of reasonable care, should have known of the
harassment but failed to take appropriate remedial action.
1.
It is undisputed that before Sharp spoke to the IAD
investigator, the only persons who knew about the harassment were
Hankins, Bice, Sharp, Sergeant Brown, and the officers in Mounted
Patrol who witnessed the incidents. The question is whether, as a
legal matter, their actual knowledge may be imputed to the city.
A title VII employer has actual knowledge of harassment that
is known to “higher management”6 or to someone who has the power to
take action to remedy the problem. See Nash, 9 F.3d at 404. The
“management” and “remedial power” standards blur together, however,
when we examine who may be considered “management,” for to be
considered a “manager,” a person must have the ability to exert
control over employees.
This includes someone with the power not only to hire and fire
the offending employee but also to take disciplinary action, to
provide significant input into employment decisions, to instruct
the offending employee to cease the harassing behavior, or to
6 Waltman v. Int’l Paper Co., 875 F.2d 468, 478 (5th Cir. 1989); see also Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993) (discussing failure of plaintiff to complain to “company hierarchy”).
10 implement other means of taking remedial action. See Williamson,
148 F.3d at 466 (holding that “employer” includes supervisor “with
some authority to address the harassment problem” in organization
with strong chain of command where supervisor could direct offender
to cease and discipline if offender failed to comply)7; Nash,
9 F.3d at 404; Waltman, 875 F.2d at 478.8 Thus, the key to whose
knowledge may be imputed to the employer is remedial power: There
is no actual knowledge until someone “with authority to address the
problem” is notified. Nash, 9 F.3d at 404.
Under this standard, the city did not have actual notice.
Neither Sergeant Brown nor Sharp's fellow officers had authority to
discipline Bice or Hankins or to take any other remedial actions.
Because no one with remedial power over Hankins or Bice knew of the
harassment, as a matter of law HPD and the city had no actual
knowledge of it.9
7 In Williamson, the supervisor whose knowledge was deemed sufficient to impute actual knowledge to the employer was an HPD sergeant. See Williamson, 148 F.3d at 463. 8 This standard comports with that of other circuits. See, e.g., Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (holding that “agent[],” part of title VII’s definition of “employer,” includes someone who “serves in a supervisory position and exercises significant control over . . . hiring, firing, or conditions of employment”) (internal quotation and citation omitted); Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), vacated in part, 900 F.2d 27 (4th Cir. 1990) (noting that agent “need not have ultimate authority to hire or fire to qualify as an employer, as long as he or she has significant input into such personnel decisions”); Nichols v. Frank, 42 F.3d 503, 508 (9th Cir. 1994) (observing that the “proper analysis . . . is what management-level employees knew or should have known”). 9 Sharp points out that Hankins had remedial power over Bice and knew of his harassing behavior. She argues this should suffice to impute actual (continued...)
11 2.
The city also may be liable if it had constructive knowledge,
i.e., if through the exercise of reasonable care it should have
known what was going on but failed to address it. Whether an
employer may be charged with constructive knowledge is, within
certain legal constraints, a question of fact.
If the harassment complained of is so open and pervasive that
the employer should have known of it, had it but opened its
corporate eyes, it is unreasonable not to have done so, and there
is constructive notice.10 Further, the existence and effectiveness
of an anti-harassment policy may be relevant in determining whether
the employer should have known about the hostile environment,11 but
an employer is not necessarily insulated from liability just
because there is a grievance procedure, even if the victim has
failed to utilize it. See Meritor, 477 U.S. at 72.
There is no doubt that Hankins and Bice openly and pervasively
9 (...continued) knowledge to the city, at least where Bice’s wrongdoing is concerned. The matter is complicated by the fact that Hankins, too, harassed Sharp. Because we affirm on the ground of constructive knowledge, we reserve this issue for a later day. 10 See Williamson, 148 F.3d at 465; Waltman, 875 F.2d at 478; cf., e.g., Waltman, 875 F.2d at 478 (5th Cir. 1989) (graffiti in several locations, announcements over public address system, multiple public instances of unwanted touching). But cf. Watts v. Kroger Co., 147 F.3d 460, 463-65 (5th Cir. 1998) (in which all public comments were sex-neutral, while private comments were sexual). 11 See Williamson, 148 F.3d at 466-67 (examining anti-harassment policies in determining employer's negligence); cf. Burlington, 524 U.S. at __, 118 S. Ct. at 2270 (noting affirmative defense of an effective grievance procedure in vicarious liability cases based on general title VII goal of preventing, rather than just remedying, harassment); Faragher, 524 U.S. at __, 118 S. Ct. at 2292 (same).
12 harassed Sharp within the closed context of Mounted Patrol. That
is, from the perspective of those fourteen or so officers assigned
to Mounted Patrol, the harassment was open and pervasive. Of
course, harassment by definition always will be open and pervasive
as to some group, if only as to the harasser and victim. But that
is not enough. To impute constructive knowledge to the employer,
we must find constructive knowledge on the part of someone whose
actual knowledge also would impute knowledge to the employer.
This means a corporate enterprise “knew or should have known”
something only when the appropriate persons within that enterprise
“knew or should have known.” In the context of sexual harassment,
such persons are those with remedial power over the harasser.
Thus, given that no one in Mounted Patrol had authority over
Hankins, it is not enough that Sharp's harassment was so open and
pervasive that every member of Mounted Patrol knew or should have
known what was happening. The question is whether someone at the
level of Hankins's supervisorSSCaptain BrownSSor higher, or someone
who otherwise held remedial power, had constructive knowledge of
the harassment.12
This is unlike the circumstance in Waltman, in which
management and employees could read the same graffiti, observe the
same publicly displayed “girlie pictures,” and listen to the same
public address announcements. Here, we have discrete incidents of
12 Cf. Williamson, 148 F.3d at 466 (holding that notice to supervisor is notice to city).
13 harassment that were physically and temporally isolated from those
with power to remediate. For the harassment to have been apparent
to Captain Brown or anyone else, that person would have had to be
at Mounted Patrol at the moment when Bice or Hankins made a lewd
joke or demeaning gesture. Consequently, the harassment was in
fact as hidden from those with remedial power as if it had taken
place in a private office.
We must be careful, however, not to conflate the concepts of
constructive and actual notice. The city in fact was unaware of
the harassment at Mounted Patrol, and the harassment in fact was
hidden. But constructive knowledge inquires into what the city, in
the exercise of reasonable care, should have known.
It would be absurd to allow an employer to insulate itself
from liability simply by isolating its units from management. The
city had established a strict paramilitary chain of command, placed
Sharp in an insular unit, and gave apparently unchecked operational
control to a single person. The city thereby had a duty to exert
reasonable care to ensure that that person did not use those
circumstances to engage in and conceal sexual harassment.
The jury considered evidence that the city had breached this
duty. The jury could have concluded that Captain Brown exerted
almost no supervisory authority over Hankins or Mounted Patrol and
that such negligent failure to supervise violated even internal HPD
procedures. The jury also could have decided that Hankins was well
14 known to be a “loose cannon” with a drinking problem and that he
had made vulgar and harassing remarks to female officers in the
past, but that HPD, despite having been put on notice that Hankins
might be a problem, had made no effort to supervise or constrain
his behavior.
Furthermore, the jury could have decided that HPD tolerated
and even fostered an attitude of fierce loyalty and protectiveness
within its ranks, to the point that officers refused to address or
report each other's misconduct. The jury could have surmised that
this HPD-wide “code of silence” prevented Sergeant Brown and
Sharp's fellow officers from doing anything about the harassment
they saw on a daily basis.
Most compellingly, however, the jury could have found that
Sharp had no real way to escape the situation—no viable means of
reporting or addressing the harassment she endured. Having given
total and effectively unfettered control of Mounted Patrol to
Hankins, and having established a strict chain of command whereby
an officer could be disciplined for bypassing an immediate
superior, the city needed to provide an effective way around that
hierarchy, so that someone subject to harassment by a supervisor
could report the harassment and allow the city to remedy it.
To establish that it satisfied that duty, the city points in
part to HPD’s sexual harassment policy. At trial, Sharp admitted
she was aware of the policy: Every police officer receives a copy
and is required to read it. In relevant part, the policy states:
15 Ideally, any employee who believes that he or she has been the object of sexual harassment should ask the offender to stop using the offensive behavior. If such action does not cause the behavior to stop, then the employee should report the alleged act immediately to his/her supervisor. . . . If the employee is not satisfied with the action taken by the supervisor or feels that the complaint would not be received objectively by that supervisor, the employee should bring the complaint to the attention of the [city-wide] Director of Affirmative Action. The Complaint will be investigated and the employee will be advised of the findings and conclusion. All actions taken to resolve complaints of sexual harassment through internal investigation shall be confidentially conducted.
Sharp admitted that, although she felt it would be useless to
complain to her supervisor about his own misbehavior, she also did
not complain to the affirmative action office. On the other hand,
she presented abundant evidence that to lodge such a complaint
against a fellow officer was effectively forbidden by the code of
silence: Anyone who dared use this reporting procedure would
suffer such a pattern of social ostracism and professional
disapprobation that he or she likely would sacrifice a career in
HPD. In essence, Sharp demonstrated that, owing to HPD's structure
and customs, she faced an unfortunate dilemma: report the
harassment and lose her career, or endure the harassment and lose
her dignity.
Furthermore, Sharp presented evidence that the city's much-
relied-on affirmative action bypass was ineffective. For example,
when she went to the affirmative action office to complain that IAD
was not putting enough effort into her case, the person with whom
she spoke at first had no idea why she was there, then made no
16 effort to help her or in any way to work on her case. Based on
this evidence, and on the unusual circumstances in which Sharp
found herself, the jury could have decided that the city had placed
her into a harassing situation with no way out. Thus, we uphold
the verdict that the city, through the exercise of reasonable care,
should have known about the harassment but failed to remedy it.
IV.
The city appeals Sharp's recovery for retaliation in violation
of her First Amendment rights under § 1983. Although title VII
also affords a remedy for retaliation against those who seek to
enforce its provisions, see 42 U.S.C. § 2000e-3(a), the district
court entered summary judgment on Sharp’s title VII retaliation
claim, and she proceeded to trial under § 1983, alleging
retaliation for exercising her First Amendment right to free
speech. To prevail on her retaliation claim, Sharp must establish
that (1) she engaged in a protected activity, (2) she suffered an
adverse employment action, (3) there was a causal connection
between the two, and (4) the execution of a policy, custom, or
practice of the city caused the adverse action.13
The city contends that the court erred in failing to grant its
motion for j.m.l. because Sharp failed to prove that she was
13 See Brady v. Fort Bend County, 145 F.3d 691, 698 (5th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3364 (Nov. 16, 1998) (No. 98-820); Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.), cert. denied, 118 S. Ct. 603 (1997).
17 subjected to an adverse employment action taken pursuant to a
policy, custom, or practice.14 Sharp responds that the city waived
the first argument and that her transfer and the written reprimand,
on top of the other petty actions her co-workers and supervisors
took against her, constitute adverse employment action. She also
argues that the evidence shows that the code of silence was a city
policy, custom, or practice that led to the retaliation.
Relying on Harrington, 118 F.3d at 365, the city argues, for
the first time on appeal, that Sharp failed, as a matter of law, to
prove she suffered an adverse employment action.15 Harrington
elucidates adverse employment action as “discharges, demotions,
refusals to hire, refusals to promote, and reprimands.” Id.
(citing Pierce v. Texas Dep’t of Criminal Justice, 37 F.3d 1146,
1149 (5th Cir. 1994)). The city failed to make a motion for j.m.l.
on this basis.
When a party has not moved for j.m.l., we review its challenge
to evidentiary sufficiency only for plain error. See McCann v.
Texas City Refinery, Inc., 984 F.2d 667, 673 (5th Cir. 1993). “In
other words, this court will reverse only if the judgment
14 The city does not challenge the other two elements. 15 In its motion for j.m.l., the city never argued that Sharp, as a matter of law, had failed to prove an adverse employment action. It merely contended that Sharp had failed to prove a policy, custom, or practice of the city.
18 complained of results in a manifest miscarriage of justice.”
United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 963-64
(5th Cir. 1998) (quoting McCann, 984 F.2d at 673) (internal
quotation marks omitted).
Under plain-error review, the inquiry is whether the plaintiff
has presented any evidence in support of his claim.16 So, if Sharp
presented any evidence supporting the finding of an adverse
employment action, we will decline to upset the verdict. See
Polanco, 78 F.3d at 974.17 The record reflects that Sharp did
present such evidence.
Although the Supreme Court has intimated that the First
16 See Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996); McCann, 984 F.2d at 673 (“[T]he question before this court is not whether there was substantial evidence to support the jury verdict, but whether there was any evidence to support the jury verdict.”). 17 Perhaps in an attempt to avoid plain-error review, the city intimates that Harrington clarified the law on this issue after the trial had concluded, and hence was not available for consideration by the district court. We disagree.
The city relies on Harrington, which was issued on July 21, 1997, and superseded a previously issued March 14, 1997, opinion, see Harrington v. Harris, 108 F.3d 598 (5th Cir. 1997). The two Harrington opinions, however, are identical as to the portions of the superseding opinion cited by the city. Compare Harrington, 118 F.3d at 365, with Harrington, 108 F.3d at 603-04. The trial began on March 17, 1997, and concluded on March 27. The city had the benefit of the first Harrington opinion before the trial and for nearly three months before filing its post-trial motion for j.m.l.
Additionally, Harrington relies on less recent § 1983 cases for its definition of “adverse employment action.” See 118 F.3d at 365 (citing Pierce, 37 F.3d at 1149, and Doresett v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 123 (5th Cir. 1991)). The law was not clarified or changed post- trial and, therefore, there is no arguable basis for applying a standard of review other than plain error.
19 Amendment protects against trivial acts of retaliation,18 this court
has required something more than the trivial, see Pierce, 37 F.3d
at 1146. The jury instruction, which the city does not challenge,
reflected this standard.19 We need examine only whether there is
any evidence that it was met.
Employer actions that can result in liability include more
than just actual or constructive discharge from employment.20
Adverse employment actions can include discharges, demotions,
refusals to hire, refusals to promote, and reprimands.21
18 See Rutan v. Republican Party, 497 U.S. 62, 76 n.8 (1990). While Rutan did not involve a retaliation claim, we have applied it to such claims. See, e.g., Pierce, 37 F.3d at 1149; Click v. Copeland, 970 F.2d 106, 110-11 (5th Cir. 1992). 19 The jury was instructed that
an adverse employment action does not require a monetary loss, such as a formal demotion or termination. Retaliation claims, however, require more than a trivial act to establish constitutional harm. To be actionable under Section 1983, a series of lesser actions, though trivial in detail when viewed in isolation, must, in total, be substantial and significantly penalize an employee for the exercise of the employee’s First Amendment right to freedom of speech. 20 See Rutan, 497 U.S. at 74; Bickel v. Burkhart, 632 F.2d 1251, 1255 n.6 (5th Cir. Unit A 1980).
21 See Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir. 1998); Harrington, 118 F.3d at 365; Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997); Pierce, 37 F.3d at 1149. We have not held this list to be exclusive and do not do so now, nor do we now expand it.
The city urges that Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.), cert. denied, 118 S. Ct. 336 (1997), a title VII case, precludes a finding of “adverse employment action” by limiting that phrase to “ultimate employment decisions,” which would exclude, for example, reprimands. The definition of “adverse employment action,” however, may be different under title VII from its definition under § 1983. See Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997) (stating that under title VII, ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leaves, but not reprimands); (continued...)
20 It is now well established that, for the purposes of a § 1983
retaliation claim, an adverse employment action can include
a transfer, because it may serve as a demotion.22 In Benningfield,
for example, we noted that “[a] transfer may also constitute a
demotion.” Benningfield, 157 F.3d at 377 (citing Forsyth, 91 F.3d
at 774; Click, 970 F.2d at 110). To be equivalent to a demotion,
a transfer need not result in a decrease in pay, title, or grade;
it can be a demotion if the new position proves objectively
worseSSsuch as being less prestigious or less interesting or
providing less room for advancement. See Forsyth, 91 F.3d at 774;
Click, 970 F.2d 109. The jury could have viewed transferring from
the elite Mounted Patrol to a teaching post at the Police Academy
to be, objectively, a demotion.
The city argues that because Sharp requested the transfer, it
cannot be deemed “adverse,” hence negating any finding of an
21 (...continued) Mattern, 104 F.3d at 707-08 (excluding disciplinary filings and reprimands from ultimate employment decisions). But this case does not implicate the potential differences between title VII's and § 1983's definitions of “adverse employment action,” because under both statutes demotions can be adverse employment actions. Although Messer's and Mattern's list of title VII adverse employment actions explicitly refers only to “hiring, granting leave, discharging, promoting, and compensating,” Mattern, 104 F.3d at 707, a demotion, as well as a promotion, must meet the criteria. Cf. Burlington, 524 U.S. at ___, 118 S. Ct. at 2268 (“A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”). Accordingly, a demotion is an “adverse employment action” under both title VII and § 1983.
22 See Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996); Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992); Fyfe v. Curlee, 902 F.2d 401, 404-05 (5th Cir. 1990); Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096, 1099 (5th Cir. 1987).
21 adverse employment action based on the transfer. Relying on Nash,
9 F.3d at 404, the city lays out this argument in skeletal form:
Sharp’s transfer cannot be retaliatory because it was voluntary.
The employer in Nash escaped liability for transferring the
employee out of the hostile environment so, a fortiori, the city
should escape liability for granting a requested transfer. Nash,
however, is inapposite for two reasons.
First, the Nash plaintiff admitted that the transfer was not
an adverse employment action, see id. at 403, so the question was
not before the court. Second, the facts of this case paint a much
different picture from those in Nash. The facts there in no way
supported a finding that the transfer amounted to demotion.
Indeed, because the employer immediately initiated the transfer
after receiving a sexual harassment complaint, the transfer
represented a “prudent response to an unpleasant situation.” Id.
at 404. Here, on the other hand, the jury reasonably could equate
the transfer with a demotion, and the city did not initiate the
transfer to protect Sharp but rather waited until she felt
compelled to request a transfer.
Other cases suggest that a “voluntary” transfer can contribute
to finding an adverse action in a § 1983 retaliation suit. In
Williamson, one of the issues was whether the employer had
retaliated under title VII’s retaliation provision. Although the
opinion only cryptically addresses the issue, saying the evidence
22 was sufficient to support the verdict, see Williamson, 148 F.3d at
468, the facts included a requested transfer. In Reeves, the court
found that “voluntarily accept[ing]” a transfer did not prevent a
back pay damages award merely because it was related to the
plaintiff’s duty to mitigate. Reeves, 828 F.2d at 1099-1101.
Under the highly deferential plain error standard of review,
we conclude that the jury was entitled to find that the transfer
was not, in fact, voluntary23SSthat the retaliatory acts of the
members of Mounted Patrol, including misdeeds such as tampering
with Sharp's tack and failing to come quickly to her aid after her
car accident, caused her reasonably to fear for her safety if she
stayed in Mounted Patrol. The jury could have found that the
transfer, albeit at Sharp's request, was a constructive demotion,
the involuntary result of conditions so intolerable that a
reasonable person would feel compelled to leave, and that the
transfer constituted a non-trivial adverse employment action.24
Furthermore, Sharp presented evidence that the retaliatory
acts that created the intolerable situation requiring her to
transfer were not merely those of her co-workers. Her immediate
23 “Voluntary” is defined as “[a]rising from one's own free will,” . . . [a]cting on one's own initiative,” . . . [a]cting or done with no external persuasion or compulsion . . . .” WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 1294 (Riverside 1984). Under these definitions, a reasonable jury certainly could have concluded that Sharp’s transfer was not voluntary but, instead, was more like a “voluntary” resignation in a constructive discharge situation.
24 Cf. Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997) (concluding that a resignation is a constructive discharge if a reasonable employee would feel compelled to resign); Jurgens v. EEOC, 903 F.2d 386, 390-91 (5th Cir. 1990).
23 supervisors, as well as their supervisors including Nuchia, were
aware of the retaliation and failed to stop the retaliatory acts.
Sharp’s expert witness testified that, following the in-
vestigation, HPD completely failed to comply with department
standards in terms of the retaliation against her and the
disciplining of officers. She also presented testimony by Mounted
Patrol’s administrative assistant that Chapman, the new supervisor
at Mounted Patrol, had treated her poorly and openly blamed her for
the problems at Mounted Patrol. These facts support an inference
that Sharp’s supervisors encouraged the retaliatory acts and that
Chapman, at least, had participated in them to a limited extent,
driving Sharp to request the transfer. All of this constitutes
some evidence supporting Sharp's position, which is all the plain
error standard requires.25
In its motion for j.m.l, the city argued that Sharp had failed
to demonstrate a policy, custom, or practice of the city, the
execution of which caused the adverse employment action. Because
the city preserved this argument, we review the denial of its
motion for j.m.l. de novo. Sharp relies on retaliations for
violations of the “code of silence” as the city’s custom and
25 We emphasize that our decision results from the highly deferential plain-error standard of review; under any lesser standard, we might very well be reticent to agree that Sharp suffered an adverse employment action.
24 practice. She presented ample evidence that a code of silence
exists. No fewer than nine witnesses testified that it does, and,
as one expert witness pointed out, Nuchia admitted to the code's
existence. Furthermore, the code can be perpetuated only if there
is retaliation for violations of it. The jury instructions, to
which the city did not object, included retaliation as part of what
defines a code of silence.
The city argues that it does not condone the code of silence
and has taken actions to discourage it. Based on the evidence
presented at trial, however, the jury could have decided that the
HPD tolerated and even fostered an attitude of fierce loyalty and
protectiveness within its ranks, to the point that officers refused
to address or report each others’ misconduct. A jury further could
conclude that the city's steps to eliminate the code were merely
cosmetic or came too slowly and too late to rebut tacit
encouragement.
The jury could have surmised that Sharp's co-workers and
supervisors enforced this HPD-wide “code of silence” by retaliatory
acts. As we have noted, any officer who violated the code would
disapprobation that he or she likely would sacrifice a career in
HPD. In Sharp’s case, the jury could determine, based on the
tampering with her tack and the delayed response to her traffic
accident, that the retaliation went beyond just social ostracism
and professional disapprobation actually to threaten her physical
25 safety.
Furthermore, the failure of Sharp’s supervisors all the way up
the chain of command, including Nuchia, to take any real action
when made aware of the retaliation supports a conclusion by the
jury that the HPD had a policy, custom, or practice of enforcing
the code of silence. The evidence also supports a finding that
HPD, although aware of the actions being taken against Sharp,
exhibited deliberate indifference to her constitutional rights by
its inaction. Such deliberate indifference can serve as the basis
of municipal liability under § 1983. See Canton v. Harris,
489 U.S. 378, 388 (1989).
To rebut the claim of a policy, custom, or practice, the city
relies primarily on discrete instances when it did take appropriate
action in response to complaints, such as the IAD investigations of
Bice and Hankins. But a custom or practice of deliberate
indifference to rights need not be followed at every juncture in
order to constitute “tacit authorization or encouragement of
wrongful conduct.” A reasonable jury could conclude that the HPD
acted in the exceptional and highly visible cases, yet deliberately
chose not to respond to numerous instances of retaliation.
In addition, the city makes no argument to refute certain
testimony on which the jury could have based its verdict. Chapman
admitted that he took no action to stop the daily acts of
retaliation within Mounted Patrol. Nuchia warned Sharp that she
26 would be subjected to retaliation and told her it was her
“destiny.” He also told her that he knew certain officers had lied
in the recent IAD investigation, but that he was not going to take
action against them. As two witnesses testified, several officers
were so confident that they would not be punished for lying in the
investigation that they made no secret of their intention to do so.
From other testimony, the city draws inferences and
conclusions in its favor; but we must do the opposite. The jury
could have believed that the city's proffered reasons for Sergeant
Brown's transfer were pretextual and that the city transferred him
in retaliation for violating the code of silence. The jury also
could accept that the “voluntary” transfer from Mounted Patrol
offered Jones was no more voluntary than was Sharp's.
The city emphasizes that two-thirds of IAD complaints
originate from within HPD, without triggering vast retaliation; yet
the city ignores testimony that it is “uncommon” if not unheard of
for these complaints to be filed by a subordinate against his
superior officer. The city points out that several witnesses
admitted they had not been retaliated against for coming forward,
but for at least two of these witnesses the testimony may have been
a complete surprise to colleagues within Mounted Patrol, affording
no opportunity for retaliation ex ante. When we draw reasonable
inferences in favor of Sharp, the non-movant, evidence supports the
conclusion that HPD at least tacitly authorized, and maybe
27 encouraged and assisted in, retaliation against subordinate
officers who broke the code of silence.
We cannot conclude that the jury acted unreasonably in
reaching its decision. Because reasonable jurors could find that
a city policy, custom, or practice caused Sharp to suffer an
adverse employment action, we affirm the judgment based on the
verdict on Sharp’s First Amendment § 1983 retaliation claim.
V.
In summary, we find no reason to upset the verdict. Sharp
presented sufficient evidence, under the appropriate standards of
review, for a jury to conclude that the city had constructive
notice of the sexual harassment and that she suffered an adverse
employment action that resulted from a policy, custom, or practice
of retaliation. The judgment is AFFIRMED.