1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 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 

 

 

2The 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 PriceWaterhouse standard as further explained in Miller. 

 REVERSED AND REMANDED. 

 ______________________