                                                                                                                           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Precedential or Non-Precedential: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.

                       ______________________
