*1 MAND for farther proceedings consistent opinion. this part,
AFFIRMED REVERSED in
part, VACATED and REMANDED in
part. GRIFFIN,
A. Plaintiff-Appellee, OPA-LOCKA,
CITY OF Earnie P.
Neal, Defendants-Appellants.
No. 00-12200.
United Court of Appeals, States
Eleventh Circuit.
Aug. *3 Trial, and its Motion for New
Motion Remittitur. rulings on court’s the district
We review mistrial, evidence, bi admissibility trial for new furcation, requests v. Fulton Alexander of discretion. abuse 1303, 1324-25 Maurer, Panza, Georgia, County, Gonyea, H. Patrick Recovery Burke, Cir.2000); Talbott (11th v. John- Hicks Neel, T. Michael & Maynard George, Murdoch, Inc., & Burke Anselmo, F.3d son, System, Lewis, FL, Lauderdale, Cir.1999); Kemp, Harriett Fort Messer *4 David P.A., Christopher Zeder, denied, Cir.1985), 474 U.S. (11th & Adorno cert. LLP., Rose, Ra- Boca (1986). Ritchie, 864, Proskauer L.Ed.2d 902 106 S.Ct. Defendants-Appellants. ton, FL, for to remit motion of a denial trial court’s A discretion. clear abuse for Akerman, & reviewed is Freidin, Senterfitt C. Ellen Co., 197 Mutual Ins. FL, Plaintiff-Appellee. Farley v. Nationwide Eidson, Miami, for Cir.1999). re We 1322, 1335 the mo denial court’s the district view de of law a matter as judgment for tion light in the novo, the evidence considering ANDERSON, Judge, and Chief Before reasonable If a to Griffin. favorable most *, Judges. Circuit BRIGHT FAY and Griffin, in favor found could have jury FAY, Judge: Circuit decision. trial court’s affirm the will we reasons For the Hicks, at 1236. I. Introduction below, affirm the fully forth more set million from a $2 an appeal This favor of judgment in final court’s district A. Plaintiff in favor of and award verdict on all Defendant Neal against Griffin Opa- (“Griffin”) City of against Griffin court’s the district reverse We claims. (“the its former City”) Locka only as to the against judgment (“Neal”), stemming Neal Earnie Manager, for the sexual liability City’s аnd assault from Neal’s affirm 1983. We Griffin under against City and Both -the against Griffin. respects. all other in court district argues appeal. bifurcate his motion denying in erred History and Procedural Factual II. City; that him and the the trial mother single old 32-year ais error reversible court committed district son, attempt- of her who, the birth prior to testimony to bolster expert permitting In career. a musical pursue ed to raped; that she allegations Griffin’s with employment commenced she its dis- court abused the district and that eventually employee temporary aas a new denying Neal’s motion cretion in the clerk billing permanent became by Griffin emotional outbursts trial due in 1993. department City’s water of the presence in the witness and another Miami-Dade in northwest City, located the district City argues that jury. The fewer municipality with County is small City’s Renewed denying court erred 1995, the In June employees. Law, than Matter of as a Judgment Motion * nation. Circuit Bright, U.S. Myron H. Honorable Circuit, sitting by desig- Eighth Judge for the
City hired Earnie Neal as desk. Manager. Neal also repeatedly asked her to City Manager, As Neal was the go Chief Ex- out with him. Griffin recalled an occa- ecutive Officer for the City, charge of its sion when Neal commented day-to-day personnel operations and deci- Mottley, Winstоn supervisors, one her sions. were going to come over and wanted her to cook dinner for them. Both Motley and immediately Almost after Neal started Neal laughed at this comment. job City, he began harassing Griffin. He summoned her to work with On multiple occasions, Neal called Grif- him on day by the first demanding that the fin into his office and told her he would “big tit” or “big breasted” girl be sent to replace have to her if she did not cook for his office.1 Immediately, began him, asking tell him looked, how good he and take personal a series of questions regard- care addition, of him. he commented ing lived, where she with, who she lived on how she should wear her hair and that child, who cared whether she was she was gaining too much weight. Griffin married, she boyfriend, whether had a and started dieting for she fear would lose her where was her child’s father. job. The next began also regularly hugging *5 day, telephoned Neal Griffin and asked her her tightly to feel her breasts and look guess to “P” what the in his name stood down her shirt. In addition to daily for. Griffin testified that Neal was refer- hugs, Griffin testified that while she was ring penis to his and that he would get sitting with a couple of officials a City off of phone until guessed. function, she Neal Neal sat behind her rubbed and told her that he was looking for a girl- knee her buttocks and whis- friend and wondered whether she pered could in her ear that “I’m still looking for help him with that. He also told her that a girlfriend.” function, At another Neal he did not like where she was sitting put and his hand on her hip and told her that wanted her to sit in front of him so that he she hurt had his feelings again because she could see her. would not sing at an event congratulating him being for City Manager. Griffin,
According to despite reject- her advances, all ing of his Neal continually Griffin also Neal calling recalled her at demanded hugs questioned and her wheth- home a day that offices were man, er she had a reiterating that he was officially closed. He asked her whether still looking a girlfriend. He also told she sleeping was next to boyfriend her and her that needed a she “man [like Neal] summoned her to the office for no appar- with money.” Griffin stated that on one ent reason. Although Griffin eventu- was occasion, Neal asked her in front of the ally supposed go to back and work for the Mayor Vice whether she was going department, to water Neal would summon specific function that night. When everyday she her to his office even though he replied was, stated, that she “Good, Neal gave no work. her When she asked Neal so we can dance close together,” at which to job, return to her old he told her that he point Neal and the Mayor Vice started was hurt and that could not believe she laughing, sent Griffin back to her wanted to leave him. Griffin testified that employees Several they testified given that were indicating memo that she to be was aware that requested Neal had “big City’s “cross-trained.” The director hu- girl” tit work for him and that it was com- man resources identify any could other monly that sexually known Neal was interest- such having memo ever been written ed in As an explanation Griffin. official City. moving office, to Griffin Neal’s Griffin was her to asked uninvited apartment her City officials various asked she getting While she drink. him a get she because job back her old get help her up behind juice, Neal came water Manag- him working for the unhappy raped her. kitchen in the her she that testified employees Several er. time she during the miserable she rape, looked that after testified Griffin contrast in stark office in Neal’s
worked she felt and that her life feared she friendly demeanor cheerful it make worse might police calling the Neal. working for started she po- before had served as previously had since of Florida nearby town in the chief lice City employees 1995, after In October believe did not She incrеase, City, Florida. living a cost given side, tried and she her take anyone seen had personally told Griffin not occurred. rape if the on as go than other increase a larger got she every day next work the bigger said, got went “You She He employees. a few employment her end you day until the go now will anybody, than raise later, Griffin months she days Several testified later. me?” Griffin with dinner rape. to make forward about her to come buy trying decided like he felt lawsuit and this attorney no she had an and that him contacted She go out her job. for another looking start ensued. but to choice thereafter, tendered Griffin Shortly against the damages sought Griffin later weeks two to be effective
resignation for sexual longer tolerate could no because she (Count I); the Florida VII Title working environ- advances (Count II); 42 U.S.C. Act Rights Civil Neal was testified ment. *6 IX); tort (Counts and state and III § tried to and resignation by her shocked VIII). (Count alleged She also law he also told her He of it. her out talk (Count Neal against battery claims out way to take her figure have to would Against IV); of Violence violations she testified that left. Griffin before she (Count V); Act, 42 U.S.C. Women complain or conduct report Neal’s not did Distress of Emotional Infliction Intentional boss, did she was her anyone beсause Privacy of VI); (Count Invasion so, did and she to do courage have the not trial, VII). (Count After a two-week create conflict. not want to interrogatory by special jury concluded resignation Griffin, but her she tendered harassed sexually After Neal ended, policy Griffin with the job her was a custom before where she function raped her Rotary Club Neal and that City, attended Rotary Club The sing. concluded jury The also was scheduled of law. color cul- workplace in the indifferent very important deliberately by the was attended on the City and against found ture of hiring Neal Neal, Commissioners, and several Griffin Mayor, jury awarded claims. tort Although mil- heads. Griffin City department $1.5 the harassment $500,000 for City’s home with a ride arranged for rape. for the lion event, Neal told following the police chief III. Discussion take that he would police chief
her and the arriving Upon instead. her home Appeal A. Neal’s music grabbed Griffin’s apartment, Neal 1. Bifurcation upstairs, carrying began equipment argu- of Neal’s dispose can Because we could take that she telling him despite her order, address we fairly short ments into He followed it herself. care of arguments. He three appeal sponte first. raises district court’s failure sua cau First, court’s argues district tion testimony could be con refusal to the trial of the claims bifurcate sidered as evidence of defendant’s bad against against him from those disposition character or to commit the prejudice in unfair resulted because crime); v. Waldrip, United States permitted to introduce evidence that Cir.l993)(court’s F.2d 799 failure to women had a harassed other sponte provide limiting sua instruction is reputation prove as a harasser plain only charge error when the court’s as being custom or indif- had a a whole as is so erroneous to result in a ferent that al- to women. Neal contends grave miscarriage jus likelihood of may though such evidence have been ad- tice); Tracy, United States v. against missible as Griffin’s claims (2d Cir.1993)(when defendant City, it was character evi- inadmissible instruction, fails to request trial court’s against dence to show intended failure to instruct ground is a for reversal person” that he was a “bad acted in who only an when it constitutes error that is conformity prior with his bad acts. “egregious and obvious” and reversal “necessary jus miscarriage redress a 42(b) Rule of the Federal Rules of (when tice”); Fed.R.Evid. 105 evidence is Civil court Procedure affords district purpose admissible for one but anoth separate discretion ordеr trials where er, court, upon “the shall restrict request, convenience, such order would further proper the evidence to its in scope and efficiency. prejudice, promote avoid jury accordingly”). struct the case, say this cannot district court concluding abused its discretion in In light our determination that significantly that bifurcation “not would sponte pro- district court’s failure to sua judicial efficiency” increase or in its con limiting plain vide instruction was not clusion that bifurcation would “result error, we need not decide whether essentially trying Court the same case prior evidence of Neal’s bad acts Order, twice.” See Omnibus March actually have been admissible in Griffin’s clearly overlap 2000. There is substantial Although case Neal. Fed.R.Evid. *7 issues, facts, evidence, in the and witnesses 404(b) prohibits prior the introduction of required claims both for Griffin’s prove bad acts to a defendant’s bad char- City. Neal and the or he in conformity acter that acted there- with, preclude the Rule does not the intro-
Moreover, although argues Neal at of a duction such evidence demonstrate length prejudiced by that his rights motive, plan, opportunity, in- defendant’s acts, prior the introduction of his bad he tent, pattern, etc. Evidence objected neither to the introduction such of other worked women who trial; did the evidence at nor he ask dis arguably under him is for one admissible limiting trict court instruction. We acceptable purposes. or more of these do not believe that the district court com in plain failing provide mitted error Expert Testimony 2. limiting sponte.2 United instruction sua Cross, 1030, 1051, Next, argues States v. n. Neal that the district (11th Cir.1991)(reviewing in an plain allowing expert error court erred witness appear jury charge It 2. does that the district court offered court instructed the in the final limiting sponte some instruction either sua or that evidence of other acts of harassment testimony determining request City regarding of the could be in considered prior by acts about of harassment Neal. The whether Neal harassed Griffin. juror partiality. ultimately Each se- behav- their post-assault testify that Griffin’s jury other assault vic- lected to serve on stated that ior conformed testimony ignore the incident and or she could decide tims. offered Griffin in expert on the Fitzgerald, an the case based evidence. Louise Professor harassment, assault, rape. which upon The second incident re- about common Fitzgerald testified during his appeal Neal occurred bases harassment, rapе or by victims of sponses Jeffery, testimony of Joanne a Florida a perpetrator, as the failure resist such City employee, testified that Neal had who assault, immediately bathing after daily while he was harassed her on basis delay filing or failure to file Jeffery’s employee City. an of Florida tes reviewing charge. After report formal timony immediately interrupt was almost that Fitz- testimony, we do not believe crying when she broke on the ed down credibility, on Griffin’s gerald commented promptly witness stand. court or testimony, veracity, capacity for truthful recess, both Neal and the dered by Grif- whether the events described Although moved for mistrial. court fin, fact, Accordingly, transpired. initially expressed concern serious about the district court do not believe testimony, it the emotional nature of the permitting the tes- abused discretion its ultimately grant declined a mistrial. timony. jury The court then to dis instructed regard crying, the witness’ each Emotional Outbursts jurors they indicated that were able to do Finally, argues dis later, so. One week the court struck Jef in not trict abused its discretion court testimony fery’s “in toto” and instructed jury him a new trial granting because completely that it was to disre tainted emotional outbursts from it. gard The first in and another witness. Griffin Although Jeffery’s contends the jury voir dirе of cident occurred before on the emotional outburst witness stand very when became emotional and disruptive was so severe and crying left court room out upset and right impartial denied his to a fair and through lobby loud. walked She jury, we have held that because the trial waiting and jury panel where then position is in judge the best to assess the ju Many prospective into the bathroom. outburst, prejudicial effect of an emotional Although the incident. rors witnessed grant the decision whether to a mistrial appeal argues the district Messer, within lies his sound discretion. granting him a new trial court erred 1087(affirming trial judge’s outburst, based on Griffin’s emotional *8 grant refusal to mistrial after murder vic requested a appears that neither mis at began screaming tim’s father incident; trial at the time of the nor did he lunged during toward the defendant defen jury panel. any move the to strike event, testimony). gave dant’s The district court in we find no abuse of discretion the ultimately curative instructions and struck district court’s decision not to strike the testimony of Raulerson panel.3 questioned The court each of witness. (11th 869, jurors Wainwright, 753 F.2d 876 prospective they what v. about presume ju- it might Cir.1985)(stating witnessed and what effect have on that we City request 3. did The district court fused. panel, strike district re- court
1303 instructiоns). private ries follow the court’s As a individual.” v. Edwards Wallace such, of we find no abuse discretion. Community College, 1517, 49 F.3d (11th Cir.1995). It firmly is established City’s Appeal
B. The
§
that a defendant
in a
1983 suit acts
judgment against
City,
In its
under color of law when he abuses the
sexually
found that Neal
harassed
position given
him by
the State. United
Griffin, that the harassment was a custom
Classic,
299, 326,
v.
States
313 U.S.
City,
or
raped
that Neal
1031, 1043,
(1941).
L.Ed.
S.Ct.
law,
under color of
and that the
City
City
maintains that as a mat
deliberately
hiring
indifferent
Neal. The
law,
any
ter of
it cannot be liable for
City
on appeal.
claims several errors
by
sexual assault committed
First,
City argues
judgment
Griffin because Neal was not acting under
favor Griffin
must be reversed because
color of state law at the
time
the as
as a matter of law:
cannot be
sault. This
previously recog
Court has
any
by
liable for
sexual assault committed
circumstances,
nized that under certain
Neal;
cannot be liable for sexual
rape
person by
of a
actor or
state
official
harassment;
and the
was not deliber-
could violate the Constitution and
serve
Second,
ately
hiring
indifferent
Neal.
§
basis
a suit under
1983. Al
argues
it is entitled to a new
mand, 103
v.
(citing
Parker
trial because the district court abused its
Williams,
(11th Cir.l989)(in
1305 car аnd told him not to any questions ask one, he utilized his authority as City Man- or answer any questions about the car ager to harass and intimidate her re- repair.7 peatedly insisting she owed him something for “all of
Although we persuaded things” are her, he did for foregoing facts including demonstrate that her a giving pay Neal uti raise for which lized his authority as she was Manager to apparently entitled, threaten- facilitate the assault on Griffin and ing that he her with job if she did not do was therefore acting under color of law certain things for him cook, like lose the time assault, of the we do not believe weight, and tell him good how he looked, that under the facts of this case we demanding that she (al- work his office are required to view the sexual assault though he apparently gave her work), no isolation ignore persistent abuse touching her inappropriately, continually of authority leading up to the assault requesting hugs, dates, and favors despite making our color of law determination. her refusal to out go him, with and asking Rather, we believe that pattern the entire her intimate questions. It is within this of abuse and against Griffin context of Neal’s continual exploitation of that eventually culminated her rape is and leverage of his authority over Griffin relevаnt to our color law analysis. In that we find a sufficient nexus between his words, Neal’s official interactions duties and obligations as Manager with Griffin as her boss during and after and Griffin’s boss and the abuse of that hours, work his continual sexual harass authority to facilitate his harassment and ment of her during interactions, those ultimate sexual assault of her.8 the ultimate sexual assault constitute an Although we are indivisible, unaware of any cases ongoing series of events. Doe directly on point, we Taylor believe our Independent conclusion District, School 15 443, Neal was acting Cir.), 461 denied, color cert. of law is 513 supported by U.S. several S.Ct. cases L.Ed.2d where state (1994)(Higginbotham, J., employees were held to concur- be acting under ringXteacher’s official color of interactions law when they utilized their au- student and his sexual activity with thority to create the opportunity for or to “indivisible, constituted an ongoing rela facilitate a sexual assault. For example, in tionship” even though a significant amount Doe v. Taylor, the Fifth Circuit found of the sexual misconduct occurred after there was a sufficient nexus between a hours and off school grounds). teacher’s duties and his sexual relationship pattern with a student for Neal’s abuse color of law purрoses his au- thority began the first where day of his employ- began misconduct ment with the City and did not school grounds end until and where the defendant after he sexually assaulted Griffin and “took she full advantage of position job left her good. day From [plaintiffs] teacher” to opportunities create Upon learning Griffin's, car used and authority abused his to perpetrate department water supervisor allegedly told Griffin sexual harassment and assault. another employee that "[Neal] must have before, was Griffin's boss during, and gotten to her. Angie’s We have car in the for a Doe, time after sexual assault. back.” F.3d at (Higginbotham, J., concur- ring)(noting significance in the color of 8. That already Griffin had resigned from her analysis law that defendant was victim's position at the City at the time of the before, teacher during, and after does not change our conclusion misconduct). that Neal
1306 per actor and another the state between contact, doing her from exempt for sexual later, his own on actor son; and state grades, and good schoolwork, her give to official of his independent wholly time her a get to her behalf on to intervene consti or other Doe, duties, assault an commits class. 15 in another grade better Under Doe, person. tort tutional the teacher 452, Like 4. n. F.3d circumstances, law is clear started conduct those improper color of acting under job at is not actor the state he while (although Almand, at 1514 to sexual- 103 F.3d authority his law. used he workplace, hours, police offi with acquainted work after became during and victim her ly harass investigat her over official duties through job benefits cer his job her held de disappearance, authority daughter’s used ultimately his ing he victim’s head,9 and force, authority his to create not her boss used sheer Manager fendant as through to her officer, her and to bust to be alone police a opportunity Humke, her); Roe v. rape door and rape her.10 front (8th Cir.1997)(although po 1213 F.3d 128 Doe, cases to several In addition through his the student lice met officer employee a state similarly held have school, no ambassador goodwill role as his he utilizes law when acts under color official duties his between existed nexus to facil opportunity authority to create the de student where and molestation Vang, Dang sexual assault. rape a itate farm, at his the student molested fendant em of state (employee at 479-80 944 F.2d clothes, plain off-duty, he was while of law under color acted agеncy ployment pre car, and did personal his driving employ looking for raped women he when activity); any official engaged tend be pre them under meeting with while ment (5th 1042, Asher, 1047 F.3d 105 or Becerra services employment providing text 824, denied, 118 S.Ct. Cir.), 522 U.S. drive); cert. Rogers v. teaching them (8th teacher (1997)(although Arkansas, 82, L.Ed.2d 40 Rock, Little special shown acted officer “first befriended police Cir.1998)(finding school, plain there was followed in” victim law where color of interest under her she teacher stop, told duties as traffic official after a nexus between no tiff home without her off molested letting teacher where him one assault owed and sexual her). raped after stu ticket, months campus and then five off student school); D.T. v. Inde from withdrew dent cases aforementioned to the In contrast District, School pendent authority employee used his a state where Cir.1990)(teacher was not 1186-88 vic- opportunity create molest law when he color of under acting cases a series relies on tim, vacation, while during summer ed students actor’s aof state performance where school obligation contractual no meet- merely facilitated duties official his home place at district, took molestation relationship dеvelopment of ing of or help noting but liability, cannot VII Title repeatedly threatened Specifically, he 9. case and the instant between required that she the similarities job, he her she would lose WL gave Corp., although he no Market Street Hotel office Huitt v. work in his work, to which she (D.Kan.l993)(employer a raise could gave her and he at *6 entitled. environment hostile be liable invoked his supervisor where analysis is differ- law Although the color of for victim more difficult authority to make than the restrictive considerably more ent and home, drove supervisor then get a ride supervisor has in- whether determination himself, way). raped her on home imposing authority purposes voked *12 activity following fund-raising velop relationship a for a bas a of trust with school; with camp ketball not affiliated he later used to facilitate assault outside product pri and the events were the of a workplace.11 Rather, he used his au- voluntarily activity plaintiffs vate thority as daily Griffin’s boss on a basis to freely participated private in as indi harass humiliate her during and after viduals); Hawkins, Mooneyhan v. 129 work hours both at the workplace (6th Cir.1997)(unpublished 1264 deci City-related pattern functions. This of holding police sion that defendant officer harassment and the аssertion of control obviously of an advantage took intoxicated over Griffin both at the workplace and plaintiff and his ten-month friendship with beyond is what differentiates this case assault). her to facilitate sexual from those police where a or officer teach- Although it clear that in each of these er befriends or a victim meets while acting cases, the actor acquainted state became in duties, the course of his official but then developed or relationship with a awith premises later assaults them off-duty, off pursuant duties, victim to his official acting private while or personal capac- or injury by assault constitutional caused ity.12 each defendant was completely committed away from and outside ambit of his ii. Policy Custom Roe, or obligations. official duties 128 The City argues next that even if F.3d at (rejecting argument 1217-18 upon Neal’s assault Griffin taken un if abuse not have occurred law, der of color state be cannot liable teacher had not won student’s trust and because Neal’s actions were pur not taken teacher; through affection role as constitu- municipal suant to a policy. custom or tional violations do not “extend to the de- The law is clear a municipality cannot affection”). velopment trust of be liable held for the actions of employ its none of cases these was the court faced ees under 1983 theory based on a of by with situation confronted this respondeat superior. Dept. Monell v. Court, of engaged where defendant in a York, Social Services New of pattern of unconstitutional behavior 658, 663, 2022, 436 U.S. 98 S.Ct. particular victim while in the (1978). Rather, depriva only L.Ed.2d official course duties the work- pursuant tions undertaken governmen place, activity and such unconstitutional tal or “policy” may “custom” lead to the continued, fact, escalated outside imposition of governmental liability. workplace. Neal’s official duties did Waiters, Floyd simply provide him opportunity Cir.1998). acquainted become with Griffin or to de- contrary, To the person mately rape against Neal and Griffin’s tips Griffin that the color relationship beyond al did not extend analysis concluding of law in favor of he was supervisor supervised subtle, acting Although and harasser to ha under color law. rassed. again reiterate the critical distinction in analysis of law color between those cases directly a state holding where actor uses his official today acting
12. Our that Neal was authority opportunity sexually to create raped law color of when he comports assault victim and those cases where a state well rule established of law merely every by authority develop actor tort uses his committed state actor victim, relationship rises the level of a constitutional facilitate of trust with violation. egregious escalating though relationship is the It even attenu- nature some authority the abuse of Neal's official ated sense serves but for of a this as a cause later perpetrate case to both harassment and ulti- sexual assault. dates, for sexual favors and unwel
Clearly, did not have mands advances, endorsing as well as unfair condoning or come sexual a formal unwilling women or sexual treatment for those Nevertheless, § lia reciprocate such conduct and who were not City employees. imposed municipality players.” on a “team Bohen v. bility may be considered *13 Indiana, 'custom’ even F.2d “governmental Chicago, East based (7th not received a custom has or though Cir.1986)(finding policy such 1187-89 body’s through the official approval municipal formal harassment at custom sexual Id. at 795. decisionmaking channels.” department employees where female fire impos set out the standard This Court subjected touching, to unwelcome conver Brown, liability stating that: such in ing workplace filled with sations at the liability mu- prove department a descriptions,” “lurid sexual [t]o custom, plaintiff a nicipality policy, manage based on had no sexual harassment practice widespread must picture establish personnel general “knew ment that, “although not authorized writ- pattern of if the details” of the express policy, is so municipal ten law or harassment, complaints and were ad to and settled as consti- permanent all). well superficially or not at We dressed usage’ or with the force of tute ‘custom to testimony presented much of detail law.” egregious make and clear (citations Brown, commonplace nature of 923 F.2d at omit ted). addition, held City, In we have also well as to demonstrate that municipality’s including City failure correct consti policymakers, the final tutionally employ actions of its Mayor offensive and the were aware Commissioners can to the level a custom or ees rise problem indif completely and were tacitly policy municipality “if the autho ferent it. displays
rizes these actions deliberate trial, At witnesses testified about several towards the misconduct. indifference” repeated during instances which Neal and Scheib, 1191, 1193 Brooks v. employees engaged vulgar, other male Cir.1987). demeaning sexually suggestive, and con- reviewing in full After the record their describing versations sexual esca- and all inferences favor of Grif taking and Neal often over- pades desires. fin, any without evidence establishes discussing heard his sex life front of that sexual harassment was question department heads and other various practice at the on-going, accepted women, employees, how including detailing Commission, Mayor, and oth many he times great bed how of, ranking City officials knew high er addition, night had sex the before. As ignored, and tolerated harassment. employees male would fre- Neal such, persuaded jury’s we are compare female staff quently members’ conclusion that sexual harassment was so breasts, legs, and bodies describe what widespread amount to persistent and as to if they sexually would do the women am a unconstitutional custom is example, they had them.13 For supported by ply the evidence. Doe], say “If I I [Jane could occasion, rock On workplace permeated really with vul- her world.” one City Attorney sexually suggestive Neal told the want- gar, demeаning, and women, improper employee from the conversations about de- ed see female According Ingram, among Mayor just this is how men talk themselves. finance department naked. On another dress more Otero, provocatively. Ana during occasion a business meeting at a acting of human resources, director testi- local hotel with City employees several occasion, fied that on one up came so representatives from a firm looking to do close behind her while she was standing at business with City, everyone told copy machine that she could feel his how he had sex in all of the rooms breath on neck. Neal told Otero that mirrors the hotel. Following short, he liked Puerto Rican women like Commission meeting, Neal about talked herself, and according Otero, up came going out “poking all night,” high-fived and kissed her once in the elevator though the male city assistant manager who was she had done nothing to encourage it. present. occasion, On another Neal de- Otero also described an incident where scribed to a female employee an incident in Neal summoned her to his office and asked *14 which he had sex in the back patrol of a her for an “intimate kiss.” car. Griffin, Ellis, Irby, and others testified City Griffin, The Attorney, and numer- that Neal made threats regarding job their ous other female employees also testified salary or when they did not reciprocate his that Neal frequently asked them for dates Irby advances. testified that Neal told her despite dinner rejections. their In ad- she’d be removed from job her because she dition, he asked him, them to cook for told was not “committed to him” and did not them that they owed him something, and ask him out for dinner. Those who did not questioned them about their sex lives. On least tolerate his advances were not occasions, at least two a group of female considered players. team One woman who City employees complained City to the At- interviewed with Neal job for a at the City torney they that having problems testified that Neal commented how nice with Neal making inappropriate sexual were, legs her home, called her asked them, comments to them, touching asking dates, talked sex, about kinky gave her for sexual favors and punishing those who City card credit number and told her to refused, giving people raises when they did them get a hotel room. She refused his them, not deserve showing and favoritism. advances did get job. City Attorney also received com- plaints City from а Clerk to the Moreover, effect that there is question no Neal asking out, was questioning her Mayor and City Commissioners knew was, about who her lover and that he was about Neal’s sexual harassment and mis- giving her a hard time because was not she conduct. Commissioner Barrett testified reciprocating his advances. was commonly known throughout City that Neal had problems
Several with sex- employees, including a Commis- ual harassment sioner, and dealing with testified that in women reference to Grif- fin, both before he became they City Manager knew that Neal requested had First, afterwards. “big at or around breasted” or time “big girl” tit work in Neal was being his office. considered for perma- Neal City asked the Attorney nent go City to a Manager position, faxes, nude bar with him and various articles, told her that he would and cartoons like to see her addressed drunk. Yacinthe, Natacha Mayor City an administra- Commission were circulat- assistant, tive testified that throughout Neal ed asked her government warn- details life, about sex inquired ing whether problem Neal had a with sexual she slept had another employee, harassment. Some of the appar- articles and indicated to her that he wanted her to ently pertained to an incident involving main- Barrett takеn. ever was job. action previous at Neal’s harassment sexual removing pursued never that he of sexual tained a list fax contained
Another the other believed Other because Neal. Neal charges against harassment Mayor endorsed man and the depicting cartoons Commissioners included faxes not vote awith and would a woman did assaulting everything harassing if get this what. going are no matter him “You warning that remove also City resident A guy.” this hire you however, example, egregious The most and faxes articles these present tried harassment City’s notice Neal’s about concerns raising prob- to the indifference complete its City Commis- aat problems harassment testimony regard- by the is evidenced lem dis- hiring was meeting where sion complaints response to Mayor’s ing ignored. The resident cussed. harassing several sexually testimony that was also There Ellis, Patricia employees. female Commissioner a womanizer.14 known see she went Attorney, testified recording of tape about testified Barrett him of to advise specifically Ingram Mayor Mayor meeting with City Commission miscon- various sexual Commissioners, Ingram, fe- from received complaints she duct erupted *15 group the Attorney where City Neal. After in employees regard malе intro- repeatedly was as Neal laughter Ellis complaints, Mayor of the the advising P. Commissioner Neal. Earnie duced as fol- responded Mayor testified everyone laughed that explained Barrett lows: middle Neal’s on placed emphasis the I hear that rumors Heck, I the if believe as Earnie known he was because initial Holmes, Timothy Neal and Earnie about in- employees, least two Neal.15At “Penis” libido, I of a and a heck they have then complained Attorney, City the cluding taking.16 they are what want some of about Neal’s Barrett Commissioner regarding than his statement Other complaints addition the In harassment. and Neal of what some to take desire Barrett, female another to Commissioner no Mayor had taking, the Holmes complained she that testified employee com- to the harassment response other two other Com- Neal’s behavior about taken. was action no remedial and plaints and the Attorney, missioners, City the to our important Mayor’s statement Barrett Although Commissioner Mayor. First reasons. today several decision had a the believed that he testified egre- most foremost, the it constitutes remedial no problem, Commis- of several presence in the mented was known that it testimony was 14.There her he "could take Mayor the sexual inter- sioners had a City that Neal the around laughed at a least on officials testified that now.” The Griffin out in est Griffin. taking occasions, even according reference Neal made remark two City officials. presence testimony of the that Griffin was though her out there Neal sum- where incident described one She upset. looked her, presence the Vice- of moned she glad Mayor, told testified resources of human director 15. The they night so that going to a function City about around talk had heard that she testified together.” She "close could dance place involv- allegedly taken orgy an had laughed at Vice-Mayor that both including Neal. City employees, ing several desk. to her her back sent the comment he, addition, told Griffin when In Vice-May- City’s Timothy Holmes chief, take home police not the City Commission. of or and member function, com- Rotary following Club gious gross statement of indifference to ment or formal mechanism for com- sexual harassment of which this Court can plaints was particularly problematic in the mayor conceive. For the city of a to ex- instant case Neal, because the primary press an interest on getting the action harasser, was person in charge per- when confronted with complaints of sexual sonnel and the day-to-day functioning of misconduct city’s chief executive City. Mayor Neither the or Commis- officer is nothing reprehensible. short of sioners were at City full-time, apparently there nowas one at Second, the Mayor’s statement suggests daily superior basis to Neal. that he Under these was aware of prior and had notice circumstances, it is not surprising that sexual harassment sexual mis- and/or City received no complaints formal conduct involving only Neal, but the Neal. Vice-Mayor as well. The jury was cer-
tainly entitled infer Mayor’s from the sum, In we believe that the Mayor and response prior notice. This City Commissioners were on notice of inference coupled with the fact that he Neal’s unconstitutional behavior and failed took absolutely no remedial action and ex- to take the first remedial pre measure or pressed an interest in “taking some of step ventative to correct the known or what [Neal and the other Commissioner] suspected sexual harassment problem. are taking” reasonably supports the con- Depew v. City Marys, St. Georgia, 787 clusion that sexual harassment was tolerat- F.2d 1496 Cir.1986)(city’s knowledge ed and City, condonеd if not encour- prior complaints, its failure to take re aged. action, medial and lack of inclination to remedy pattern of known contending that it constitutional had no vi notice of olations harassment, is precisely type City makes informal much of *16 policy the fact no or custom prior that is lawsuits actionable were filed 1983). § against Neal The City for sexual never harassment. investigated the Nev- ertheless, allegations of harassment, do not we believe that sexual the ab- no rec prior sence of ords kept of complaints, lawsuits or EEOC no com- one plaints in charge questioned, determinative on ever disciplined, the issue or whether the City is even discussed blatantly notice of sexual harassment with unconstitutional Neal.18 conduct high-rank- its There was no sexual harassment ing officials. Nor are we overly or training Mayor concerned evidence the or with the lack of complaints formal within Commission ever even considered formu City the government City lating either. The did a sexual policy harassment until af not have a sexual policy, harassment ter nor Griffin left job with the City.19We any specific there person or entity believe it fair say to that the City’s toler designated to receive sexual harassment аnce gross harassment, sexual its failure complaints.17 The lack of a sexual harass- to take remedial despite action actual and Daniels, 17. Dr. Hattie the director of going human tits get you are to City trouble.” The resources, City knew that the needed a sexual Attorney also warned Neal that his conduct harassment policy. apparently presented She problems could City. create for the Neal, a draft policy to but no action was ever implement taken to it. 19.Furthermore, appears it City that when the finally implemented poli- a sexual harassment employees Two did apparently warn Neal 1998, cy in it City Manager, new about Upon hearing behavior. Neal's re- Commission, City policy enacted the quest “big girl” that the tit be sent to his part regulation. an administrative office, Mottley Winston told Neal that “those pattern of the or part and incident was custom knowledge problem of the
constructive harassment, we cannot reason- sexual harassment sexual complete any lack of its all ably say jury that the found essential taken to- complaint procedure policy or § aspects of the 1983 case “moving constitute a force” gether clearly such, City.21 judgment As the verdict and rampаnt behind City rape for the cannot against the stand. such, uphold jury’s City. As policy a or had conclusion Liability for Harassment b. Sexual tolerating gross sex- or ignoring custom of Next, it City contends that harassment. ual be harassment be cannot liable question is The more difficult affirmatively cause the evidence estab it policy has such whether when atmosphere that the which Griffin lished this following type a rape liable for can be not constitute a hostile work worked did the facts of this of harassment. Under VII or environment under Title ing however, case, that we we do believe § prevail on a environ 1983. To hostile question. this required answer are claim, plaintiff ment must demonstrate of the court’s instruc Upon review district sufficiently sexual harassment verdict jury jury and the form tions or alter pervasive severe the terms itself, jury did not appears it create a dis employment conditions of findings requisite support make criminatory working abusive environment. rape against liability for the Regents, 212 Gupta v. Florida Board of response Ques City.20 Specifically, denied, Cir.2000), cert. form, jury con tion 6 of the verdict 1076, 121 531 U.S. S.Ct. L.Ed.2d policy or had custom cluded that (2001). or sexually hostile abusive allowing in previous Our discussion sec however, jury, work environment. opinion tions of the leaves little doubt as to finding express as whether rendered no our belief whether Neal’s sexual harass or policy a similar custom sufficiently ment of severe or Griffin was ignoring rape or sexual as tolerating pervasive working to constitute hostile sault. Nor did the verdict refer clearly environment. We believe that rape part of the incident as *17 was, and issue the merits little discussion. of harassment such that custom sexual § rape Construing light for could be the in a most liability 1983 the sus evidence Griffin, jury the custom of harassment. favorable to a reasonable tained based on not that that the harassment was Because record does establish could conclude the jury pervasive that had a severe where there tes- the found the custom and was rape timony or or it rape of that that was known around the allowing Moreover, argues properly appears 20. from the verdict form 21. Griffin that is rape rape liable for the because the was the City's jury maximum liabil- that found the of, of, pat- part and therefore culmination Question $500,000 ity.to response be to 9 gross tern of sexual harassment that existed at form, jury to on the verdict which asked City. By today, our we decision do damages by determine what were caused facts, preclude possibility thаt some under rape. for other than the Neal or the acts rape part a a sexual assault could be of or Question form, contrast, 8 on the verdict pattern custom of sexual harassment. jury to required which determine what Rather, simply say cannot based on the damages by were caused Neal's sexual assault jury, case record before us in this fact, that Griffin, no its of made reference to finding. appears It made this us liability rape. was never asked to do so. for the
1313
§
had a
workplace
presents
sexual interest
a
claim
1983
based on a hiring
Griffin;
went
to work
inadequate
decision and
screening,
Su-
place
in the first
because he
preme
demanded
Court has stated that:
office;
“big
tit
work in his
he
girl”
Only
adequate scrutiny
where
ap-
of an
repeatedly
go
asked her to
on dates with
plicant’s background would lead a rea-
him;
him,
and
girlfriend;
cook
to be his
sonable policymaker to conclude that the
he made comments of a sexual nature and
plainly
consequence
obvious
of the deci-
insulting
body,
about
remarks
her
weight,
applicant
sion
hire the
be
appearance;
constantly
and
requested
deprivation
a
party’s federally
of
third
hugs so that he could feel her breasts and
prоtected
can
right
the official’s failure
shirt;
look down her
rubbed his knee
to adequately
applicant's
scrutinize the
whispered
her
and
buttocks
background constitute “deliberate indif-
looking
still
girlfriend;
a
ference.”
repeated
finally,
rejections
after her
County
Board
Bryan
Commissioners
advances,
raped
Skadegaard
her.
v. County,
Brown,
,
397,
v.
Oklahoma
520 U.S.
Farrell,
F.Supp.
578
1212-16
1209
411,
1382, 1392,
117 S.Ct.
c. Deliberate Indifference City reasonably that the could be to said Next, deliberately we consider a have been indifferent to whether reasonable Grif rights. fin’s constitutional hired City’s could conclude that was alleged City deliberate in to hiring by Manager according indifference some testi resume, interview, failing background mony to his investigate can without a back check, support liability ground any sexual harassment un- discussion of his plaintiff der 1983. In cases a qualifications.22 previous where As detailed Mayor Ingram particular 22. only qualifications that said no ex- needed were three votes perience necessary job [by was Commission]. Neal. Because we complaints against the time when ment opinion, of
sections Neal, it City considering hiring supports was that the evidence con- believe articles, faxes, and inundated with was City a known or ignored clusion that the with mail, sex- problems of Neal’s warning highly likely risk that Neal was to obvious dealings with women. ual harassment in sexual if hired as engage harassment testimony of the that some There City’s permanent City Manager, we prior a of sexual harass- included list faxes jury’s City uphold the conclusion Neal. Other faxes charges against ment hiring acted with deliberate indifference City explicit warnings included City properly The is therefore liable Neal. have sexual going to by Neal. for sexual harassment committed it problem if hired sexual and/or attempted who Neal. Both citizen New Trial complaints City Commis- raise these Neal, it City argues Like City Commissioner meeting sion to a new trial the dis is entitled because who, about the harass- concerned allowing trict court abused its discretion informa- flags, requested more ment red testimony per of certain witnesses background, on Neal’s were disre- tion mitting prior bad evidence Neal’s acts Moreover, testimony garded. there was womanizer, purpose showing bad character known that Neal was a com- Mayor reject monly propensity. City’s argu known to the and Commis- or We Most im- Earnie “Penis” Neal. sioners as it ments that is entitled to a new trial however, testimony portantly, there was testimony Jefferys on the Joanne based City officials suggesting Fitzgerald and Dr. for the same reasons sexually harassing Neal was aware that rejected arguments, and the is period during the of time City employees no further We do sue merits discussion. as acting City appointment between his however, moment, take address the time of his final confir- Manager and the City’s argument the district court City Manager. De- permanent mation as permitting abused its discretion evi that Neal spite flags indicating red these prior of Neal’s acts to show dence bad bad problems would harass- have propensity. presented character or ment, City permanent for a hired Neal evidence Neal had harassed position. prior to his during women both em Moreover, appears cursory that a ployment City. City with the The contends employment prior check into Neal’s histo- that this amounted to little more than a ry have further alerted campaign against Neal and no smear prior regard Neal with complaints about regarding relevance whether Neal ha Cify apparently sexual harassment. rassed or assaulted Griffin. What the prior ignored telephoning policy its own however, recognize, fails employers background search conduct prior evidence of Neal’s bad acts was di employment and did not obtain Neal’s files rectly relevant to Griffin’s claims that the prior hiring permanent City him as condoning had a custom or Manager. during Neal’s file indicated that sexual harassment and that the employment City, with Florida there deliberately hiring indifferent in Neal. *19 complaints were of sexual harassment prior acts of at sexual harassment Further, Mayor against him. the of Flori- jobs City other of which the aware or City da testified that if he had been con- should have been aware is critical the by anyone City, tacted at the he would have informed them of the sexual harass- determination whether a reasonable back-
1315
investigation would have
ground
made
court’s decision whether
jury’s
to remit a
sexually
that Neal
plainly obvious
would
award of compensatory damages
highly
is
employees if hired by
harass female
the
deferential. We have held that
“[o]nce
addition,
In
the
of
City.
evidence
other
defendant
plaintiffs
is found liable for the
acts of harassment was also admissible to injury, the district court
great
has a
deal
City’s
the
custom or
of
policy
demonstrate
of
in deciding
discretion
the level of dam
tolerating
v.
Spell
sexual harassment.
ages to be awarded.” Ferrill v. Parker
(4th
McDaniel,
Cir.1987)(ev-
tion Conclusion
IV. It is unique case. is a this hope that
We responsible that mature believe
difficult in this themselves conduct
adults when CORPORATION, troubling more It is even VISKASE manner. activi- intolerable Plaintiff-Appellee, such perpetrators decision Our officials. municipal ty are message as a clear serve today should CAN NATIONAL AMERICAN contrary to behavior type of this all that COMPANY, Defendant- For all be tolerated. will not laws and our Appellant. we affirm reasons foregoing against Defendant judgment verdict 99-1569, 99-1570. Nos. the $1.5 reverse We respects. in all Appeals, Court States United Neal’s City for against the million verdict Federal Circuit. but under of Griffin in all judgment affirm July 2001. respects. other REVERSED part and AFFIRMED part. concurring
ANDERSON, Judge, Chief
specially: Fay’s opinion Judge in all of
I concur case, except to the disturbing very
this issue opinion addresses
extent color of under acting Neal was whether raped assaulted when law
state by the only was raised issue This
Griffin. did jury hold
City.1 Because there rape, City liable find the challenge City’s address
is no need acting not Neal was
relating whether time. The at that of law
under color only for § 1983 liable
found than the only acts
$500,000, excluding (i.e., the sexual
rape issue, to that respect rape). With clearly establishes opinion Fay’s
Judge of law color acted under
both that theories, including rape under several for the failure explanation probable battery. of assault claim law the state liable is because the issue to raise