1. We previously granted summary judgment with respect to the

remainder of plaintiff's complaint.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KIMBERLIE WEBB : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA : NO. 05-5238

MEMORANDUM

Bartle, C.J. June 12, 2007

This case involves claims by a Muslim female police

officer whose requests to wear a khimar while on duty were denied

by her supervisors.

Before the court is the motion of the defendant City of

Philadelphia for summary judgment on Count I of the complaint in

which plaintiff Kimberlie Webb alleges religious discrimination

under Title VII of the Civil Rights Act of 1966, 42 U.S.C.

§ 2000(e), and on Count II in which she avers retaliation and

hostile work environment also under Title VII. See Fed. R. Civ. 1

P. 56. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). 

I.

The material facts are undisputed. Plaintiff, a

practicing Muslim, has been employed by the City of Philadelphia

as a police officer since 1995. On February 11, 2003, she sent a

memorandum to Captain Michael Murphy, her commanding officer, in

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which she stated her religion required that she cover her hair

and requested permission to wear a headpiece called a khimar

while in uniform. The khimar is a traditional garment worn by

Muslim women which covers the hair, forehead, sides of the head,

neck, shoulders, and chest and sometimes extends down to the

waist. Plaintiff intended to wear the lower portion of the

khimar tucked inside of her police shirt and to wear her police

hat. Although some Muslim women also cover their faces leaving

only a slit for their eyes, plaintiff was not seeking to do so at

that time. The Captain denied her request to wear a khimar as a

violation of Philadelphia Police Department Directive 78, which

describes in detail the approved uniform for Philadelphia police

officers. Nothing in the directive authorizes the wearing of

religious symbols or clothing as part of the uniform.

On February 28, 2003, plaintiff filed a complaint for

religious discrimination with the Equal Employment Opportunity

Commission ("EEOC"). On August 12, 2003, while the matter was

pending before the EEOC, plaintiff decided to "take a stand" by

appearing for work wearing a khimar in the manner described

above. A lieutenant on duty asked her to remove it, but she

refused. Captain Murphy thereupon informed her that she would

not be permitted to work unless she complied with Directive 78. 

She refused to obey his order and was sent home. On August 13

and 14, she again appeared at roll call wearing the khimar, and

when she declined to take it off, she was prohibited from

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working. Thereafter, she arrived for work without the khimar and

was allowed to carry out her duties.

Disciplinary charges were instituted against plaintiff

for insubordination and neglect of duty on August 13 and 14 for

refusing to obey the order of her commanding officer to remove

her khimar. In accordance with normal procedures, she received

an evidentiary hearing before a police board of inquiry. It

found plaintiff guilty and recommended to Police Commissioner

Sylvester Johnson that she be suspended. After review of the

matter, the Commissioner, himself a Muslim, suspended her for 13

days. Plaintiff did not grieve the discipline.

She filed an amended charge with the EEOC on August 4,

2004 in which she added allegations of retaliation to her

previous charge of religious discrimination. Specifically,

plaintiff claimed that the following actions were retaliatory:

(1) being sent home from work on August 12, 13 and 14 after

refusing to remove her khimar; (2) suspension without pay for

thirteen days in March 2004 as a result of wearing her khimar to

work; (3) temporary removal from the "Safe Streets" detail where

she had worked overtime; (4) transfer to a different work shift

in January 2004; (5) the failure to notify her in time to attend

a January 2004 awards ceremony where she was to receive a merit

award; (6) a referral to the department's counseling program; and

(7) a poor performance evaluation in April 2004 for allegedly

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 3 of 17
2. Plaintiff also initially alleged that she was retaliated

against when she was disciplined for failure to maintain her

driver's license and for failure to secure property during an

arrest. She has since withdrawn these additional claims of

retaliation. 

3. Although the amended charge was not considered by the EEOC

because of administrative error on the part of the Commission, it

was properly filed by plaintiff, and we do not penalize her for

the Commission's error. See Anjelino v. New York Times Co., 200

F.3d 73, 96 (3d Cir. 1999).

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abusing sick leave. The EEOC issued a right-to-sue letter on 2

July 8, 2005, and plaintiff filed her complaint in this court on

October 5, 2005. 

3

II. 

Plaintiff maintains that the City's refusal to permit

her to wear a khimar while in uniform and on duty constitutes

religious discrimination under Title VII. 42 U.S.C. § 2000e2(a)(1). The City counters that it was simply requiring her to

obey Police Department Directive 78, which has been in effect for

30 years and prescribes in detail the uniform as well as various

grooming requirements for Philadelphia police officers. The

Directive does not authorize the wearing of religious symbols on

the uniform or the wearing of religious apparel while on duty. 

Police Commissioner Johnson's uncontradicted deposition

testimony sets forth in detail the purposes of Directive 78. It

reflects the fact that the police force is a para-military

organization in which personal preferences must be subordinated

to the overall policing mission which requires the utmost

cooperation among all officers. The uniform promotes that

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cooperation, fosters esprit de corps, emphasizes the hierarchical

nature of the police force, and portrays a sense of authority to

the public. The wearing of religious symbols or clothing would

undermine these purposes and has the potential for interfering

with effective law enforcement and even for causing harm to

officers in a diverse community such as Philadelphia. According

to the Commissioner, it is essential that the police maintain

political and religious neutrality as they carry out their duties

and must be seen by the public as not favoring one group or faith

over another. Directive 78 is designed to achieve these goals.

Title VII prohibits an employer from discriminating

against an employee on the basis of religion. 42 U.S.C. § 2000e2(a)(1). The statute defines religion to "include[] 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 or prospective 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, an employee must demonstrate that: "(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 v. Univ. of Medicine &

Dentistry of New Jersey, 223 F.3d 220, 224 (3d Cir. 2000). 

Plaintiff has made out her prima facie case. The burden of going

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forward thus shifts to her employer, the City of Philadelphia, to

demonstrate "that it made good faith efforts to accommodate, or

that the requested accommodation would work an undue hardship." 

Id. The burden of persuasion remains at all times on the

plaintiff. Moore v. City of Philadelphia, 461 F.3d 331, 341-42

(3d Cir. 2006).

The City concedes that it has not offered plaintiff a

reasonable accommodation. Instead, it asserts in its defense

that it would suffer an undue hardship if it were required to

accommodate her.

The Supreme Court in Trans World Airlines v. Hardison,

held that undue hardship exists if an employer is required "to

bear more than a de minimus cost" to make a reasonable

accommodation." 432 U.S. 63, 84 (1977). The cost, however, does

not have to be economic. In United States v. Board of Education,

911 F.2d 882 (3d Cir. 1990), our Court of Appeals faced a

challenge under Title VII to the Pennsylvania Garb Statute. 

Alima Reardon, a devout Muslim and substitute teacher, had been

told that she could not wear "a head scarf which covered her

head, neck, and bosom leaving her face visible and a long loose

dress which covered her arms to her wrists." Id. at 884. The

Garb Statute provides:

That no teacher in any public school shall

wear in said school or while engaged in the

performance of his duty as such teacher any

dress, mark, emblem or insignia indicating

the fact that such teacher is a member or

adherent of any religious order, sect or

denomination.

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24 Pa. Stat. Ann. § 11-1112; Board of Education, 911 F.2d at 885. 

According to the statute's legislative purpose, as set forth in

its original preamble: "It is important that all appearances of

sectarianism should be avoided in the administration of public

schools of this Commonwealth." 1895 Pa. Laws page no. 395. 

Board of Education, 911 F.2d at 893. The Court of Appeals

determined, on a motion for summary judgment, that the School

Board of Philadelphia had not engaged in religious discrimination

against Reardon in violation of Title VII. It reasoned that it

would be an undue hardship for the School Board to accommodate

her because the Commonwealth regards "the wearing of religious

attire by teachers while teaching as a significant threat to the

maintenance of religious neutrality in the public school system." 

Id. at 894.

In Goldman v. Weinberger, 475 U.S. 503 (1988), the

Supreme Court was presented with the question whether the

Government violated the First Amendment rights of an Air Force

Officer, an Orthodox Jew, who served as a military psychologist,

when a regulation prohibited him from wearing a yarmulke while in

uniform. The Supreme Court held that no constitutional violation

occurred. It recognized the compelling need for uniformity in

the military with the subordination of personal identities to the

"overall group mission."

The Supreme Court had occasion to pass upon a

regulation of the Suffolk County, New York Police Department

restricting the length of the hair of its officers, although

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religious discrimination was not an issue. Kelley v. Johnson,

425 U.S. 238 (1976). The Court of Appeals had ruled that the

regulation interfered with an officer's personal liberty under

the Fourteenth Amendment. The Supreme Court reversed. In

deciding that no constitutional violation had occurred, it

explained:

The overwhelming majority of state and local

police of the present day are uniformed. 

This fact testifies to the recognition ...

that similarity in appearance of police

officers is desirable. This choice may be

based on a desire to make police officers

readily recognizable to the members of the

public, or a desire for the esprit de corps

which such similarity is felt to inculcate

within the police force itself.

425 U.S. at 248.

While neither of these two Supreme Court decision

involved religious discrimination under Title VII, both gave

deference to governmental regulations governing the grooming and

attire of those who serve in the military and on a local police

force. These precedents, together with our Court of Appeals

decision in Board of Education and the undisputed testimony of

Police Commissioner Johnson, inform our reasoning here. 

In Board of Education, as noted above, the court held

that enforcement of the Garb Statute did not constitute religious

discrimination under Title VII because its purpose was to

maintain religious neutrality in the public schools, and it would

impose an undue hardship to accommodate Reardon and others

similarly situated. Board of Education, 911 F.2d at 894. Like

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 8 of 17
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the Garb Statute, Police Directive 78 has a compelling public

purpose. It recognizes that the Police Department, to be most

effective, must subordinate individuality to its paramount group

mission of protecting the lives and property of the people

living, working, and visiting the City of Philadelphia. The

Directive's detailed standards with no accomodation 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. Prohibiting religious symbols and attire

helps to prevent any divisiveness on the basis of religion both

within the force itself and when it encounters the diverse

population of Philadelphia. Like the Garb Statute, Police

Directive 78 is designed to maintain religious neutrality, but in

this case in a para-military organization for the good not only

of the police officers themselves but also of the public in

general. Under the circumstances, it would clearly cause the

City an undue hardship if it had to allow plaintiff to wear a

khimar. Indeed, the case for Directive 78 appears even stronger

than under the Garb Statute in light of the Supreme Court's

rulings in Goldman and Kelley.

Our Court of Appeals' decision in Fraternal Order of

Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) is not to

the contrary. The plaintiffs were Muslim police officers whose

religious beliefs mandated that they grow beards. The issue

presented was whether the Newark Police Department policy

prohibiting beards contravened the free exercise clause of the

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4. Plaintiff additionally alleges that she was discriminated

against because the Police Department favors members of the

Christian faith. For this proposition, she cites the deposition

testimony of another police officer who claims to have observed

"[A] few [officers] that may have a cross on their lapel, like a

lapel pin. ... Or maybe a necklace." Bilal Dep. 48:7-10,

September 14, 2006. Officer Bilal also claims to have seen some

officers wear ashes on their foreheads on Ash Wednesday each

year. Plaintiff, however, fails to provide the identity of any

of these officers as well as any times or locations where such

incidents may have taken place. Moreover, she does not offer any

evidence that the supervisors of these officers or the Police

Commissioner condoned or were even aware of these alleged

actions. Without any such evidence, the vague and conclusory

statements of one witness are insufficient to overcome the City's

motion for summary judgment on this question. 

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First Amendment when it made an exception for those with certain

medical conditions. The court held that the policy violated the

Constitution by allowing beards for secular but not religious

reasons. Here, in contrast, Philadelphia Police Directive 78

bars the wearing of religious dress or symbols under all

circumstances when a police officer is in uniform. It has no

medical or secular exceptions.

The City of Philadelphia has established compelling

non-discriminatory reasons for Directive 78 and has demonstrated

as a matter of law that it would suffer an undue hardship if

required to accommodate the wearing of a khimar by the plaintiff

while on duty as a police officer. Accordingly, the motion of

the City for summary judgment on Count I under Title VII alleging

religious discrimination will be granted.4

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 10 of 17
5. In her complaint, plaintiff identified the protected activity

she engaged in as the filing of the February 28, 2003 charge with

the EEOC. She later changed course and now declares that "the

protected activity at issue in the instant matter was not the

filing of a claim of discrimination with the EEOC on [sic]

February 2003 .... In contrast, the protected activity at issue

here took place on August 12-14, 2003 when Plaintiff wore her

khimar to work." Pl.'s Mem. in Opp. at 17. Because her present

contention is within the scope of what Title VII prohibits, we

will consider it. 42 U.S.C. § 2000(e)-3(a); see also Moore, 461

F.3d at 341 (3d Cir. 2006). 

-11-

III.

Plaintiff contends in Count II of her complaint that

the City retaliated against her for engaging in the protected

activity of wearing her khimar to work in August 2003 and that

such retaliatory activity created a hostile work environment, in

violation of Title VII. Although we have already determined her 5

religious discrimination claim against her, that decision is not

dispositive of her claim for retaliation. The Court of Appeals

has explained that "[P]rotesting what an employee believes in

good faith to be a discriminatory practice is clearly protected

conduct. Thus, a plaintiff need not prove the merits of the

underlying discrimination complaint, but only that [s]he was

acting under a good faith, reasonable belief that a violation

existed." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,

1085 (3d Cir. 1996) (internal citations and quotations omitted).

To survive a summary judgment motion on a retaliation

claim a plaintiff must establish a prima facie case by

demonstrating that: (1) she engaged in protected activity; (2)

the employer took adverse employment action against her; and (3)

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there was a causal connection between her participation in the

protected activity and the adverse employment action. Moore, 461

F.3d at 342. Once the employee establishes a prima facie case,

the burden of going forward shifts to the employer to articulate

a legitimate, non-discriminatory reason for its conduct. Id. at

342. If the employer does so, it is entitled to summary judgment

unless the employee is able to point to some evidence from which

a reasonable fact finder could conclude that the employer's

explanation was false and that the real reason for the action was

retaliation. Id. The burden of proof always rests on the

plaintiff. Id.

Plaintiff first claims that she was retaliated against

when she was sent home from work on August 12, 13 and 14, 2003

after declining to remove her khimar when ordered to do so. She

asserts that this retaliation continued when she was suspended

without pay for thirteen days in March 2004. The City argues

that plaintiff was being insubordinate when she admittedly

refused to obey her supervisor's direct order to comply with

Directive 78. It maintains that her supervisors were entitled to

send her home and take further disciplinary action in response. 

She has put forward no evidence to suggest that this explanation

was false. Instead, she merely reiterates the contention of her

discrimination claim that Directive 78 was unlawful. We have

already determined to the contrary. When plaintiff's supervisors

sent her home and disciplined her, they were merely enforcing

Directive 78 as written, with no hint of retaliatory motive. 

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 12 of 17
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Since she does not dispute this, the City has successfully put

forward a legitimate, non-discriminatory reason for its conduct. 

Second, plaintiff avers that her temporary removal from

the "Safe Streets" detail where she worked overtime was

retaliatory. A memorandum from Lieutenant John McCloskey, dated

February 6, 2003, documents his recommendation that she be taken

off the Safe Streets detail. The request was approved the same

day by the Commanding Officer. It is axiomatic that for an

adverse employment action to be retaliatory, it must occur after

the employer was aware that the employee had engaged in protected

activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

272-73 (2001). Plaintiff did not make her written request to

wear her khimar while on duty until February 11, 2003, and the

"protected activity" she engaged in did not happen until August

2003. Consequently, there is no possibility that her removal

from the Safe Streets program could have been retaliatory. 

Plaintiff simply cannot make out a prima facie case for this

claim.

Plaintiff next argues that her temporary transfer to a

different work shift in January 2004 and the issuance of a poor

performance evaluation for her in April 2004 were retaliatory. 

The City counters that both the transfer and the evaluation were

justified by the fact that she had low "activity numbers" at

night and poor attendance. She contends that her attendance

never formally violated the Department's sick leave policy. 

However, she does not dispute that she had low activity numbers

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 13 of 17
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or that her supervisors informed her that the reason for the

shift change and performance evaluation was her low activity

numbers and poor attendance. Again, plaintiff has not overcome

the City's proffered legitimate, non-discriminatory reason for

its actions.

Plaintiff further asserts that her referral to the

Police Department's Employee Assistance Program ("EAP") was made

in retaliation for her protected activity. As part of her prima

facie case, she must show that an adverse employment action was

taken against her. Moore, 461 F.3d at 340-41. The EAP is a

counseling program that helps employees manage job-related

stress, solve personal problems, and deal with addictive or

suicidal behaviors. Referral to the Philadelphia Police

Department's EAP is a non-punitive action. EAP use by the

officers is voluntary and does not appear on their employment

record. Because plaintiff does not even allege otherwise, she

cannot make out a prima facie case on this claim.

Plaintiff additionally contends that she was retaliated

against when her supervisors did not inform her that she was to

receive a Merit Commendation Award in time to attend the ceremony

in January 2004. The Supreme Court has made it clear that the

"anti-retaliation provision [of Title VII] protects an individual

not from all retaliation, but from retaliation that produces an

injury or harm." Burlington N. and Santa Fe Ry. Co. v. White,

126 S. Ct. 2405, 2414 (2006). This requirement of "material

adversity" separates serious harms from trivial ones, and thus

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 14 of 17
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advances the purpose of the anti-retaliation provision by

prohibiting only the employer actions "that are likely to deter

victims of discrimination from complaining." Id. at 2415

(internal quotation omitted). "[N]ormally[,] petty slights,

minor annoyances, and simple lack of good manners will not create

such deterrence." Id. (citation omitted). The failure to notify

plaintiff of the awards ceremony is not sufficiently serious to

constitute a materially adverse employment action. She has not

made out a prima facie case on this claim. 

Finally, we turn to plaintiff's contention that the

retaliatory action against her was sufficiently severe so as to

give rise to a cause of action for hostile work environment under

Title VII. Although in some cases the facts establishing a claim

for retaliation can also establish a claim for hostile work

environment, they are distinct causes of action under Title VII. 

To sustain a hostile work environment claim, plaintiff must

demonstrate that she was harassed on account of her religion and

that this harassment was so "severe or pervasive" as to alter the

conditions of her employment and create an abusive working

environment. Faragher v. Boca Raton, 524 U.S. 775, 786 (1998). 

Harassment sufficient to support plaintiff's hostile work

environment claim requires that she show the City's animus toward

her religion. See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th

Cir. 1994). A hostile work environment claim is thus premised on

unwelcome conduct that establishes an intimidating or offensive

work environment. West v. Phila. Elec. Co., 45 F.3d 744, 753 (3d

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 15 of 17
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Cir. 1995). A plaintiff can bring a hostile work environment

claim when she has suffered "discriminatory intimidation,

ridicule, and insult." Meriter Sav. Bank v. Vinson, 477 U.S. 57,

65 (1986). In this case, she has put forward no evidence

suggesting animus toward the Muslim religion. She alleges no

verbal abuse, offensive comments or symbols, physical threats or

humiliation, or any other indication that the Police Department

of Philadelphia was at all hostile to her or her faith. As noted

above, Commissioner Sylvester Johnson himself is a Muslim.

Accordingly, we will grant the motion of the City of

Philadelphia for summary judgment on Count II of plaintiff's

complaint for retaliation and hostile work environment.

Case 2:05-cv-05238-HB Document 62 Filed 06/12/07 Page 16 of 17
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KIMBERLIE WEBB : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA : NO. 05-5238

ORDER

AND NOW, this 12th day of June, 2007, for the reasons

set forth in the accompanying Memorandum, it is hereby ORDERED

that:

(1) the motion for summary judgment of defendant City

of Philadelphia to dismiss Counts I and II of plaintiff Kimberlie

Webb's complaint is GRANTED; and

(2) judgment is entered in favor of defendant City of

Philadelphia and against plaintiff Kimberlie Webb with respect to

Counts I and II of plaintiff's complaint.

BY THE COURT:

 /s/ Harvey Bartle III 

 C.J.

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