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.2 I.

Sharp was one of about fourteen officers assigned to Mounted

Patrol, an elite horse-mounted unit sta tioned several miles from

downtown Houston and police h eadquarters. 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 lo cated 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 re tained 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 one3

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 officer s 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 Hankins1 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 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 f u nny, and that she did not care for the

treatment Hankins and Bice afforded her, she nev er 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 evi dence 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

provid e 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 Patrol5

pending the investi gation'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 offic ers 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

off icers who came to their defense against Sharp's

allegations, severely enough.

Sharp sought relief from Sergeant Chapman, the new day shift

supe rvisor 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 to2 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 his superiors, he often responded to Sh arp by minimizing the

retaliation SS “laughing it off” and telling her not to worry about

it SS and 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

ro ll calls, demanded professionalism in response to the

investigation, and stated that inappropriate behavior SS in cluding

acts of retaliation SS would not be tolerated.

The retaliation continued, however, an d 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. The3 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); H arris v.

Forklift Sys., Inc. , 510 U.S. 17 (1993).

7 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 “ c ourt” or the

“district court”), and Sharp prev ailed on all remaining claims

against all defendants.

The jury awarded compensatory damag es 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 hara ssed 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 Bureau8

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 interpreta tion 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 R ESTATEMENT (S ECOND ) OF

A GENCY § 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 Cour t ’s most recent

pronouncements.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 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. S ee

W illiamson

, 148 F.3d at 464. 5 The concept of negligence thus

imposes a “minimum standard” for employer liability SS direct

liability SS

und er title VII, s ee Burlington

, 524 U.S. at

___,

118 S. Ct. at 2267, a standard that is supplemented by the agencybased standards for vicarious liability as articulated in Faragher

and Burlington

.

T he city does not dispute that the jury was properly6 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 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 signi ficant input into employment decisions, to instruct

the offending employee to cease the harassing behavior, or to7 In Williamson, the supervisor whose knowledge was deemed sufficient to

i mpute actual knowledge to the employer was an HPD sergeant. S ee 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 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. 99 (...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; c f., 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). B ut 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); c f

. 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 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 charg ed 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 pervasively12 Cf. Williamson

, 148 F.3d at 466 (holding that notice to supervisor is

notice to city).

13 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 supervisor SS Captain Brown SS or higher, or someone

who other wise 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 of14

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 fr om 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 an d 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 well15

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 HP D 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” p revented 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 t he 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 of ficer could be disciplined for bypassing an immediate

superior, the city needed to provide an effective way around that

hierarchy, so that someone su bject 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:16

I deally, any employee who believes that he or s he 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 immediat e ly 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 [ci ty-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 throug h 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

sile nce: Anyone who dared use this reporting procedure would

suffer such a pattern of social ost racism 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 th e city's muchrelied-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 ha d no idea why she was there, then made no13 See Brady v. Fort Bend County

, 145 F.3d 691, 69 8 (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 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 Amend ment rights under § 1983. Although title VII

also affords a remedy for retaliation against those who seek to

enforce its prov isions, s ee 42 U.S.C. § 2000e-3(a), the district

court entered summary judgm ent on Sharp’s title VII retaliation

claim, and she proceeded to trial under § 1983, alleging

retaliation for exercising he r 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 caus al 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 was14 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 subjected to an adverse emplo yment 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.

A.

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 suffer ed an adverse employment action. 1 5 H arrington

elucidates adverse employment action as “discharges, demotions,

refusals to hire, refusals to promote, and reprimand s.” I d.

(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. S ee McCann v.

Texas City Refinery, Inc.

, 984 F.2d 667, 673 (5th Cir. 1993). “In

ot her words, this court will reverse only if the judgment16 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 t here was a ny

evidence to support the jury verdict.”).

17 Perhaps in an attempt to avoid plain-error review, the city intimate s

that Harrington clarified the law on this issue after the trial had concluded,

and hence was not av ailable 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 a s 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 befo r e the trial and for nearly three

months before filing its post-trial motion for j.m.l.

Additi onally, H arrington relies on less recent § 1983 cases for its

definition of “adverse employment action.” S ee 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 posttrial and, therefore, there is no arguable basis for applying a s tandard of

review other than plain error.

19 complained of results in a manifest mis carriage 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. S ee

Polanco

, 78 F.3d at 974. 1 7 The record reflects that Sharp did

present such evidence.

Although the Supre me Court has intimated that the First18 See Rutan v. Republican Party

, 497 U.S. 62, 76 n.8 (1990). While R utan

did not involve a retaliation claim, we h ave applied it to such claims. S ee,

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 establis h 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 substa ntial 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. S ee Messer v. Meno

, 130 F.3d 130, 140 (5th Cir. 1997)

(stating that under title VII, ultimate employm ent decisions include hiring,

discharging, promoting, compensating, or granting leaves, but not reprimands);

(continued...)

20 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 action s that can result in liability include more

than just actual or constructive discharge from employment. 2 0

Adverse employment actions can include discharges, demotions,

refusals to hire, refusals to promote, and reprimands. 2121 (...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

. B urlington

, 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

si g nificantly 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); F yfe 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 It is now well established that, for the purposes of a § 1983

retaliation claim, an adverse employm ent action can include

a transfer, because it may serve as a demotion. 22 In B enningfield

,

for example, we noted that “[a] transfer may also constitute a

demotion.” B enningfield

, 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

worse SS s uch as being less prestigious or less interesting or

providing less room for advancement. S ee 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 an22

adverse employment action based on the transfer. Relying on N ash

,

9 F.3d at 404, the city lays out this argument in skeletal form:

Sharp’s transfer cannot b e retaliatory because it was voluntary.

The employer in Nash e scaped 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 N ash

. The facts there in no way

supported a findin g that the transfer amounted to demotion.

Indeed, because the employer immediately initiated the transfer

after receiving a sexual harassment complaint, the tr ansfer

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 i nitiate 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 adv erse 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 evidence23 “Voluntary” is defined as “[a]rising from one's own free will,” . . .

[a]cting on one's own init iative,” . . . [a]cting or done with no external

persuasion or compulsion

. . . .” W E BSTER ' S II N EW R IVERSIDE U NIVERSITY D ICTIONARY 1294

(Rive rside 1984). Under these definitions, a reasonable jury certainly could

have concluded that Sharp’s transfer was not volun tary 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 was sufficient to support the verdict, see Williamson

, 148 F.3d at

468, the facts included a requested transfer. In R eeves

, 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 t hat the jury was entitled to find that the transfer

was not, in f act, voluntary 2 3 SS that the retaliatory acts of the

members of Mounted Patrol, including misdeeds such as ta mpering

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 i nvoluntary result of conditions so intolerable that a

reason able 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 immediate25 We emphasize that our decision results from the highly d eferential

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 supervisors, as well as their supervisors including Nuchia, were

aware of the retaliation and failed to stop the retaliatory acts.

Sharp’s exp e rt witness testified that, following the inv estigation, HPD completely failed to comply with departm ent

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

B.

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 and25

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

a nd 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

suffer such a pattern of social ostracism a nd professional

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

accid ent, that the retaliation went beyond just social ostracism

and professional disapprobation actually to threaten her physical26

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. S ee 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

o rder 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 she27

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 co de of silence. The jury also

could a ccept 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

s uperior 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

conclusio n that HPD at least tacitly authorized, and maybe28

encouraged and assisted in, retaliation against subordinate

officers who broke the code of silence.

We cannot conclude that the jury acted un reasonably 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 reas on 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.