* Chief Judge of the Western District of Louisiana, sitting

by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-8700.

Sylvia DeANGELIS, Plaintiff-Appellee,

v.

EL PASO MUNICIPAL POLICE OFFICERS ASSOCIATION, DefendantAppellant.

May 10, 1995.

App eal from the United States District Court for the Western

District of Texas.

Before JONES and DeMOSS, Circuit Judges, and SHAW *

, District Judge.

EDITH H. JONES, Circuit Judge:

The principal issue in this case is whether a jury verdict for

the plaintiff in a Title VII sexual harassment case may be

supported only by evidence of a few written jibes, at women police

officers generally and the plaintiff in particula r, published in

the police association newsletter. We hold that such evidence,

rife as it is with first amendment overtones, will not suffice and

so reverse the judgment.

BACKGROUND

After six years on duty with the El Paso Police Department as

a patrol officer and detective, Sylvia DeAngelis became the first

female sergeant in October, 1987. Within a few months of

promotion, she was satirized by an anonymous writer in The Silver

Badge, a newsletter of the El Paso Municipal Police O fficers1 We reject the Association's assertion that it is not a

labor organization subject to Title VII. 42 U.S.C. §

2000e(d)(e).

2 Association (the Association), an organization similar to a police

officers union. 1 The author's nom de plume was R.U. Withmi. He

wrote as a patrol off icer with nearly 20 years' experience

"combatin' crime." His monthly column criticized, in an irreverent

and collo quial manner, groups including superior officers, "rear

echelon" officers ("REMF's"), bureaucrats, and "weenie boys." R.U.

Withmi lashed out at changing times in the police department while

longing for the good old days. The incursion of females into the

departm ent, a quintessential element of modernization, did not

escape his sharp pen.

This laws uit arises from several of his columns, published

between November 1987 and February 1990, that derogatorily referred

to policewomen. About a thousand copies of The Silver Badge were

printed monthly and distributed at a minimum to 700 police officer

members of the Association.

Publication of the columns angered more than two dozen female

police officers, who asked the police chief and officers of the

Association to stifle R.U. Withmi. The police chief, despite his

discomfiture, had no direct authority over the Association, and the

Association, after a vote of the membership in early 1990, rejected

their leaders' advice to require that R.U. Withmi unmask himself.

Peculiarly, although specifically offered the opportunity,

none of the policewomen ever chose to write a response to R.U.2 Except perhaps a brief anonymous editorial from "I.N.

Wifya" which expressed disgust and disagreement with R.U. Withmi

on a variety of issues including remarks about the attractiveness

of the new female recruits.

3 Although the events that gave rise to this case predate the

Civil Rights Act of 1991, which first permitted award of

compensatory and punitive damages in Title VII claims, the

Association as appellant has never asserted the non-retroactivity

of those provisions. But see Landgraf v. USI Film Prod.,

--- U.S. ----, ----, 114 S.Ct. 1483, 1508, 128 L.Ed.2d 229 (1994)

(holding that provisions of the Civil Rights Act of 1991 creating

a right to recover compensatory and punitive damages under Title

VII do not apply to cases pending on appeal when statute was

enacted).

3 Withmi for T he Silver Badge. 2 The record mentions no boycott of

the Association or its newsle tter, no challenge to the officers'

election. Sergeant DeAngelis' Title VII claims are before this

court.

DISCUSSION

DeAngelis secured jury findings that (1) R.U. Withmi's

articles subjected her to harassm ent, creating a hostile and

sexually abusive working environment, and (2) a reference in one of

the columns to he r "E-I-E-I-O" [EEOC] complaint amounted to

retaliation for exercise of her Title VII rights. The jury awarded

Sergeant DeAngelis $1 0,000 in compensatory damages and $50,000

punitive damages. 3

The Assoc iation has appealed on several grounds, the most

compelling of which are sufficiency of evidence of liability and

the assertion that, if this verdict is upheld, the First Amendment

free speech rights of R.U. Withmi have been abridged. These issues

must be discussed together.

In reviewing a jury verdict, we abide by the standard set4

for th in B oeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en

banc). We consider the evidence in the light most favorable to the

party defending the v erdict, and we will reverse only when

reasonable minds in the exercise of i mpartial judgment could not

have arrived at that verdict. MacArthur v. Univ. of Texas Health

Center at Tyler, 45 F.3d 890, 896 (5th Cir.1995).

To establish an actionable claim of sexual harassment in the

workplace, a plaintiff must demonstrate:

(1) That she belongs to protected class; (2) that she

was subject to unwelcome sexual harassment; (3) that the

harassment was based on sex; (4) that the harassment

affected a "term, condition or privilege of employment";

and (5) that the employer either knew or should have

known of the harassmen t and failed to take prompt

remedial action.

See Jones v. Flagship International, 793 F.2d 714, 719-20 (5th

Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93

L.Ed.2d 1001 (1987). The Supreme Court recently affirmed that

sexually discriminatory verbal intimidation, ridicule and

insults may be sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive

working environment that violates Title VII. H arris v.

Forklift Systems, Inc.,

--- U.S. ----, -- --, 114 S.Ct. 367,

370-71, 126 L.Ed.2d 295 (1993) (citing Meritor Savings Bank v.

Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d

49 (1986)).

Nash v. Electrospace System, Inc., 9 F.3d 401, 403 (5th Cir.1993).

A claim for a sexually hostile working environment is not a

trivial matter. Its purpose is to level the playing field for

women who work by preventing others from impairing their ability to

compete on an equal basis with men. One must always bear this

ultimate goal in mind. A hostile environment claim embodies a

series of criteria that express extremely insensitive c o nduct

against women, conduct so egregious as to alter the conditions of

employment and destroy their equal opportunity in the workplace.5

Any lesser standard of liability, couched in terms of conduct that

sporadically wounds or offends but does not hinder a female

employee's performance, would not serve the goal of equality. In

fact, a less onerous standard of liability would attempt to

insulate women from everyday insults as if they remained models of

Victorian reticence. A lesser standard of liability would mandate

not equality but preference for women: it would create incentives

for employers to bend over backwards in women's favor for fear of

lawsuits. Now that most American women are working outside the

home, in a broad range of occupations and with ever-increasing

responsibility, it seems perverse to claim that they need the

protection of a preferential sta ndard. The careful, heightened

phrasing of a hostile environment claim, enforceable where working

conditions have palpably deteriorated because of sexually hostile

conduct, aims to enforce equality, not preference.

To test whether Sergeant DeAngelis' evidence satisfied the

standard of liability, we return to the separate criteria for a

hostile environment claim: (1) Sexually discriminatory

intimidation, r idicule and insults, which are (2) sufficiently

severe or pervasive that they (3) alter the conditions of

employment and (4) create an abusive working environment. H arris,

--- U.S. at ----, 114 S.Ct. at 370 (citing Meritor Savings Bank v.

Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). H arris

added:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment

that a reasonable person would fin d hostile or abusive—is

beyond Title VII's purview.6

Id. In determining whether a working environment is "hostile" or

"abusive", all the circumstances must be considered, including

the fre quency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee's work performance.

Id. at ----, 114 S.Ct. at 371. The test is an objective one, not

a standard of offense to a "reasonable woman." See Harris,

---

U.S. at ----, 114 S.Ct. at 370.

Lacking any other evidence of sexual discrimination or

harassment, DeAngelis stakes her case on R.U. Withmi's columns and

their effects. We will summarize each column that was offered at

trial as critical of Sergeant DeAngelis or women police officers in

general. Each column bore this disclaimer:

R.U. Withmi is a senior lev el patrol officer whose article

appears monthly. It does not represent the official position

of the EPMPOA [the Association] but present s a humorous

satirical view by the author. Written comments to the editor

are welcome.

One must infer that because the R.U. Withmi column appeared monthly

in The Silver Badge, and the challenged articles appeared over a

course of 30 months, none of the twenty articles not offered in

evidence at the trial court was hostile to women.

1. December 1987 —Well-low and BE-hold!!, the Holiday

Season is here! It seems like just the other day we got a new

C hief and them 87 low bid police cars had just arrived. As

the new year fast approaches these here parts and we all git

just a little older, I has begun to get a lil' nostalgic in my old age a remeberin' when things was a little different. It

is my opinio n that we here are in a new age of patrolmen,

patrolwoman, defectowoman, sergeant dingy woman and now thanks

to the appeal process, patrol other! I just think a people

are changing and we are getting a new generation of patrolmen

in as few as five years! I remember the good ol' days when

finding the criminal was more important to the patrolmen then

keeping your hair in place! I wonder how far back you7

remember? I remember these things, let's see if you do ...

Remember when? ... Do you remember when there were no women

workin' the streets? (Ah yes, those were the good days! ...

Sorry gals, truth hurts!) ...

2

. February 1988

— I never thought I would make the

newspaper El Paso Rag , an E-I-E-I-O complaint or be blasted

out of my socks by our Presidente himself!

3. March 1988

—

... only REAL MEN wear them ole wool

pants! You don't see any of the "jefes" with a bottle of hair

spray on their Sam Browns! ... And I don't EVEN want to start

up against the "girls" so my Commandante Presidente don't get

"scared" again with his poison pen!

4. August 1988 —I was surprised to think they were also

training some good lookin' K-9s up there but I was told those

were the female recruits! I swear!, complete with collars!

Oh well, my mistake!

5. October 1988 —I understand I done rustled the feathers

of a few Female Recruit Officers and their "Daddys" up there

on the "HILL." Well, ole' RU's a so sorry because I sometimes

get carried away with tellin' things they way it is. Don't

worry, I think I was wrong because the public will treat you

with all the "respect" you deserve IF you get out there, and

they will never call you names other than "officer." And

wherever you answer the call, you will always get the

cooperation you deserve. And no one will call you names to

your face. So, life will be a bowl of cherries on the streets

and everythin' you've been told is the truth ...

6. January 1989

—

... now the patrol stations have to pull

out a FULL DUTY policeMAN from the field to do the desk work!

... I just want a car that works, and a supervisor with some

sense

... and a female officer that places her ability before

her gender and IA out of my way!

7. February 1989

—

... with just one whack of the pluma we

had mus ical supervisors all over the City.... Chances are

purty darn good that we all probably know who the real problem

was. But no names these days because of them EEOC Fed boys!

8

. July 1989 —Anyway, fly that flag, be glad yor e American, have a job, are male, and workin' patrol.

9. February 1990

— We had a hell-uva BS session at shift

meeting (a place REMF's know nuthin' about!) regarding women

i n combat.... Physically, the police broads just don't got

it! Different standards or not, on the real streets the

crooks don't fight women different than men! Why shoot, a guy

weighing 140 pounds is just a lil' bird to me, but a fit to4 This column spawned the class action lawsuit in state court

by 22 women police.

8 fight police broad of 140 pounds ain't just around that often!

Someone tell me I'm wrong! 4

10. April 1990 —My academy Joe weenie partner dun informed

me that this here bits o truth I writes each months just plain

gots alotta folks supportin' it!

Sergeant DeAngelis acknowledged that only the first column

directly ref erred to her—as Sergeant "dingy woman," evidently a

shorthand expression for "dingb at." She asserts that the column

concerning her "E-I-E-I-O complaint" ridiculed her as well as EEOC.

Another column singled her out as one of the few officers to carry

a flashlight on her belt in the daytime. And she believes that the

reference to musical su pervisors in the February 1989 column

i mplied that her troubles caused a shift around the police

department. All of the other columns, DeAngelis conceded, refer to

women in general, as was brought home to the police department and

the Association by the uproar of many female police officers at

their appearance.

Whether the four columns that refer to DeAngelis, taken alone

or in conjunction with the other six columns appearing at irregular

intervals in two and a half years, amounted to severe or pervasive

sexually discriminatory intimidation, ridicule or insults depends

in part upon their context. The R.U. Withmi column did not

represent a boss's demeaning harangue, or a sexually charged

invitation, or a campaign of vulgarity perpetrated by co-workers:

the column attempted clumsy, earthy humor. R.U. Withmi intended to

be a curmudgeon, the p olice department's Archie Bunker or Homer9

Simpson, who eyed with suspi cion all authority figures,

academy-trained officers, police dispatchers, newfangled procedures

and gear—whatever had changed from the old days. Misogyny

naturally came with R.U.'s territory, although, against the

backdrop of his other barbs, it can hardly be called an obsession.

In any event, much of his humor lacked volatility: his reference

to a police officer as a "policeMAN" or his exhortation to "be glad

you're male ...", for instance, hardly rank in the firmament of

sexist vilification.

On occasion, the column was forced to acknowledge criticism

and apologize in its way to its v ictims such as the dispatchers,

female recruits, and the " "Daddys' up there on the Hill." The

column 's severest attack on women—which compared police work to

R.U.'s combat experiences in Viet Nam—may be read to include

self-criticism: it notes that a hush fell over the room when this

subject was discussed. That column did not refer to DeAngelis.

R.U. Withmi columns ceased being published sometime during 1990.

We conclude that these columns are the equivalent of the "mere

utterance of an ... epithet which engenders offensive feelings in

an employee." M

eritor Savings, 477 U.S. at 67, 106 S.Ct. at 2405.

Consequently, they were not severe or pervasive enough to create an

objectively hostile or abusive work environment. H arris,

--- U.S.

at ----, 114 S.Ct. at 370. Four printed derogatory references to

Sergeant DeAngelis at irregular intervals in two and a half years

do not evince sufficient hostility toward her as a matter of law.

Our conclusion is fortified by DeAngelis' extremely w e ak10

evidence of the impact of those articles. She testified that on

two specific occasions following the publication of the first

article, junior officers behaved insubordinately to her. On both

occasions, her reprimands against the subordinates were upheld.

She surmised that these supervision problems, as well as other

incidents of disrespect for her authority, were inspired by the

R.U. Withmi columns. She testified subjectively that the

appearance of the articles caused her great humiliation, destroyed

her self-confidence, deterred her from applying for a promotion to

lieutenant, and caused her to be the brunt of "dingy woman"

comments. There was no other testimony supporting DeAngelis'

belief that the articles impaired her performance. Her performance

ratings remained good. When she complained to the police chief and

others in command, they responded supportively. They, as well as

the board of the Association, tried to suppress the R.U. Withmi

column, or discontinu e its anonymity. The Association-President

Breitinger wrote a letter to The Silver Badge defending the female

officers.

Further, judged by the "totality of the circumstances" set out

in Harris, this case is hardly as compelling as many reported Title

VII sexually hostile environm ent claims. First, DeAngelis was

subjected to no overtly discriminatory professional treatment. She

was not a victim of ridicule before her promotion to become the

first woman sergeant in the police department. S ee Harris,

---

U.S. at ----, 114 S.Ct. at 319; Andrews v. City of Philadelphia,

8 95 F.2d 1469, 1486 (3d Cir.1990) (derogatory and sexual rema rks5 After unsuccessfully attempting to publish a letter in The

Silver Badge condemning the columns, Chief Scagno distributed his

letter to all personnel. Chief Scagno wrote, "I feel all these

11 and conduct against female police officer). Second, no physical or

sexual advances were made on DeAngelis, as has been characteristic

of many hostile environment claims. S ee, e.g., Waltman v. Int'l

Paper Co., 875 F.2d 468 (5th Cir.1989) (female employee was

repeatedly sexually groped and propositioned); C arr v. Allison Gas

Turbine Div. Gen. Motors, 32 F.3d 1007 (7th Cir.1994) (co-workers

of female tinsmith cut her overalls and accompanied exposure of

themselves with lewd sexual innuendos); A rnold v. City o f

Seminole, 614 F.Supp. 853 (E.D.Okla.1985) (female police officer

subjected to lewd and vulgar sexual comments and innuendos, and

discriminatory employment action). Third, DeAngelis was not preyed

upon by a superior whose actions could be interpreted as an abuse

of power against a subordinate employee. H arris,

--- U.S. at ----,

114 S.Ct. at 369; Jones v. Flagship International, 793 F.2d 714

(5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93

L.Ed.2d 1001 (1987). She was herself in a command position.

Fourth, apart from the claimed impact of the articles, there is no

evidence of a n atmosphere of sexual inequality or sexually

demeaning treatment within the El Paso Police Department, her

employer. On the contrary, representatives of the police

department testified that they were embarrassed about and exhorted

against the R.U. Withmi columns. Chief Scagno twice distributed

memoranda throughout the police department condemning the R.U.

Withmi columns. 5attacks have been totally one-sided, and in some cases

chauvinistic, and racist.... Basically, in regards to the column

by R.U. Withmi, instead of bringing important things to light for

officers as an article such as this should, the column has become

derisive and nothing more than a public platform for the author's

personal opinions and prejudices."

6 We do not mean that sexual propositions, quid pro quo

overtures, discriminatory employment actions against women or

"fighting words" involve the First Amendment.

7 The Court's pronouncement in R.A.V., that "sexually

derogatory "fighting words,' among other words, may produce a

violation of Title VII's general prohibition against sexual

discrimination in employment practices" does not mean that Title

12 Because we have concluded that insufficient evidence supports

DeAngelis' claim of a sexuall y harassing work environment, we do

not reach the difficult question whether Title VII may be violated

by expressions of opinion published in the R.U. Withmi columns in

the Association's newsletter. Where pure expression is involved,

Title VII steers into the territory of the First Amendment. It is

no use to deny or minimize this problem because, when Title VII is

applied to se xual harassment claims founded solely on verbal

insults, pictorial or literary matter, the statute imposes

content-based, viewpoint-discriminatory restrictions on speec h. 6

See Eugene Volokh, Freedom of Speech and Workplace Harassment, 39

U.C.L.A.L.Rev. 1791 (1992 ); Kingsley R. Browne, T itle VII as

Censorshi p: Hostile Environment Harassment and the First

Amendment, 52 Ohio St.L.J. 481 (1991). Whether such applications

of Title VII are necessarily unconstitutional has not yet been

fully explored. B ut see Robinson v. Jacksonville Shipyards, Inc.,

760 F.Supp. 1486 (M.D.Fla.1991). The Supreme Court's offhand

pronouncements are unilluminating. 7VII trumps First Amendment speech rights. Rather, as the next

sentence in R.A.V. explains, conduct not targeted on the basis of

its expressive content may be regulated. R.A.V. v. City of St.

Paul, Minnesota, --- U.S. ----, ---- - ----, 112 S.Ct. 2538,

2546-47, 120 L.Ed.2d 305 (1992). Citing R.A.V., the Court in

Wisconsin v. Mitchell, --- U.S. ----, ----, 113 S.Ct. 2194, 2200,

124 L.Ed.2d 436 (1993) reiterated that conduct not targeted on

the basis of its expressive content may be regulated by Title

VII. However, application of Title VII to the "conduct" in the

case sub judice would do precisely that—regulate speech on the

basis of its expressive content.

13 Matching the infirmity of appellee's hostile sexual

environment verdict is the retaliation finding, supported only by

R.U. Withmi's reference to an "E-I-E-I-O" complaint and a report on

her EEOC complaint among the Association minutes routinely

published in The Silver Badge. DeAngelis also asserts as proof of

"retaliation" an article in The Silver Badge that reported the

Association's intention to sue her for damages if her lawsuit

against the Union proved groundless. A retaliation claim requires,

in addition to proof of the plaintiff's protected activity, an

adverse employment action, and a causal conne ction between the

adverse action and the protected activity. E EOC v. J.M. Huber

Corp., 927 F.2d 1322 (5th Cir.1991). No matter how vehemently

DeA ngelis denounces these articles, they did not amount to an

"adverse empl oyment action" under any reasonable meaning of that

term. The jury verdict lacks foundation.

CONCLUSION

Title VII cannot remedy every tasteless joke or groundless

rumor that confronts women in the workplace. For DeAngelis, the

p rice of success as the police department's first woman sergeant

i ncluded transitory ribbing by R.U. Withmi. The newsletter8 Because we reverse the underlying findings of liability, we

also vacate the award of punitive damages.

14 columns, howe ver, were not so frequent, pervasive or pointedly

insulting to DeAngelis as to create an objectively hostile working

environment. The totality of circumstances do not prove that her

working conditions were disadvantaged because she was mentioned in

four R.U. Withmi columns. Likewise, three printed references to

her EEOC complaint do not constitute retaliation under Title VII. 8

The judgment of the district court is therefore REVERSED and

RENDERED for the Association.