Dixon v. International Broth. of Police Officers

504 F.3d 73

Vanessa DIXON, Plaintiff, Appellee/Cross-Appellant, v. INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS; International Brotherhood Of Police Officers, Local 382; John Leary, Defendants, Appellants/Cross-Appellees Kenneth T. Lyons, Defendant, Cross-Appellee.

No. 06-1210.

No. 06-1211.

No. 06-1212.

No. 06-1851.

No. 06-1852.

No. 06-2094.

United States Court of Appeals, First Circuit.

Heard June 5, 2007.

Decided September 28, 2007.

Joseph W. Monahan, III, with whom Thomas G. Freda and Monahan & Padellaro were on brief, for appellants and cross-appellees.

Ingra S. Bernstein, with whom Monica Pastorok, Rachel Stroup, and Zalkind, Rodriquez, Lint & Duncan LLP were on brief, for appellee/cross-appellant.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

This appeal stems from an ugly incident of verbal abuse of a female police officer by her fellow male officers during a union-sponsored bus trip in the fall of 1998, as well as from the actions of the union and its members in response to the investigations of her complaints in the years that followed. The female officer, Vanessa Dixon, eventually brought a civil suit in federal court against the national union and its local chapter, their presidents, and two of the police officers involved in the incident, asserting claims of discrimination, retaliation, and defamation. The jury found for Dixon on some but not all of her claims, awarding her a total of $1,205,000 in compensatory damages and $1,027,501 in punitive damages.

Defendants appeal the judge's denial of their motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), as well as the judge's jury instructions regarding retaliation and punitive damages. Dixon, who lost her defamation claim against the national union and its president, appeals the judge's determination that she was a public official, which required the jury to find that the defendants acted with actual malice. We affirm.

I. BACKGROUND

Because some of the defendants challenge the denial of their motions for judgment as a matter of law, we recount the facts in the light most favorable to the verdict. Muñiz-Olivari v. Stiefel Labs., Inc., 496 F.3d 29, 35-36 (1st Cir.2007). Vanessa Dixon joined the Lowell Police Department in 1994, when there were fewer than ten female police officers in a force of nearly three hundred. She was twenty-three years old. After early assignments with neighborhood-based community policing programs, Dixon was assigned full-time as a resource officer at Rogers Middle School, an inner-city school. In that position, she coordinated with Social Services and Juvenile Probation to assist troubled students and their families. Among other duties, she conducted peer mediation, organized after-school and summer activities, taught gang resistance and a "teens against violence" curriculum, and advocated for students who were having trouble at home. This work required Dixon to develop relationships of trust and respect with the students and within the community. Her early evaluations were extremely positive, and she received special awards from her unit for her work with young people.

The day Dixon joined the police department, she automatically joined the police officers' union, Local 382 ("Local") of the International Brotherhood of Police Officers ("IBPO"). An active member, Dixon ran for the Local's executive board, hosted holiday parties for members' families, participated in fundraising events, and traveled with the Local to union events in Puerto Rico and Washington, D.C. In the fall of 1998, Dixon agreed to participate with the Local in a gubernatorial campaign rally in Boston.

On October 26, 1998, Dixon joined seven of her fellow officers and six corrections officers on a hired bus to travel to Boston. She was the only woman on the trip, other than the bus driver. From the moment she walked into the union hall that afternoon, she was subjected to gender-based criticisms by the other officers regarding what she was wearing and her presence on an all-male trip. Once in Boston, the group participated briefly in the rally at Faneuil Hall, then reboarded their bus for Anthony's Pier 4, where the IBPO hosted a dinner and open bar. After dinner, the group moved to the restaurant's bar, where they befriended a group in town for a convention. Gerald Flynn, the president of the Local and the organizer of the Boston trip, invited these out-of-towners to join the Lowell group on their bus as they continued on to J.J. Foley's, a bar in the South End frequented by police officers.

Dixon spent time at J.J. Foley's with some of the conventioneers, including a man named Jason Kumm. When the bar closed at 2 a.m., Kumm did not know how to get back to his hotel, so Dixon persuaded the bus driver to drop Kumm off before heading back to Lowell.

As the bus left the bar, John Leary — a police officer whom Dixon had once dated and who was sitting directly across the aisle from her — started yelling at Dixon for creating a delay-causing detour so late at night. The shouting escalated as other people at the back of the bus joined in. The comments, directed at Dixon and Kumm, turned sexual: "Why don't you fuck her. We all have." "She gives great blowjobs." "She will do you, she's done all of us." The bus driver, who testified that she had spent seven years trying to forget that night, explained that "the word fuck was used so often that I was turning my mind off to it." Kumm described the barrage as "totally inappropriate conversation, verbally abusive, threatening." Flynn, sitting at the front of the bus, encouraged Kumm to get off before a fight broke out; the situation, he thought, "had the potential to explode."

Kumm did get off the bus before it reached his hotel, but the verbal abuse of Dixon did not end. Leary kept shouting in Dixon's face such comments as, "Get off the bus with your boyfriend. Go fuck him at the Sheraton if you want to bring him with you." Similar comments continued from the back of the bus. When Dixon looked behind her, she saw another officer, David Pender, standing with his hands down his pants and saying, "Why don't you come and fucking blow me."¹ Terrified, Dixon demanded the bus driver let her off the bus near Boston Common, even though the driver and Ed McMahon, another officer, tried to dissuade her. Throughout all of this, Flynn remained at the front of the bus; although the president of the Local, he did not intervene to stop the abuse or to try to reassure Dixon when she wanted to flee.

During her efforts to make her way home, Dixon was subjected to an attempted sexual assault by a stranger. Distraught, Dixon called in sick to work the next two days, and when she did return to work, she avoided speaking about the bus incident. A few weeks later, however, the Chief of the Lowell Police Department, Edward Davis III, caught wind of the incident and started an internal investigation, in which Dixon cooperated. On November 19, 1998, the Chief sent letters to the male officers on the bus trip, including Leary, ordering them to have no contact with Dixon.

On November 20, the very next day, Leary sought and received an ex parte temporary restraining order ("TRO") against Dixon under chapter 209A of the Massachusetts General Laws. Leary's cursory affidavit, which the jury did not see, evidently alleged that Dixon had made threatening comments to him the evening of the bus incident. He did not explain why he had waited a month to seek protection from Dixon in the form of a TRO. Leary knew the TRO would have the result, under department policy and Massachusetts law, of forcing the police department to put Dixon on administrative leave and confiscate her weapon while the TRO was in effect. Although Dixon hired a lawyer and went to court to deny the allegations, Leary never returned to court to support his TRO or seek continued protection, allowing the TRO to expire after its initial fifteen-day coverage. Dixon testified she was humiliated when she had to explain her month-long absence, caused by the TRO, to the teachers, students, and parents with whom she worked at Rogers Middle School. Because of the TRO, she had to get special permission to renew her firearms permit, and she avoided participating in outreach programs that required a background check.

The Lowell Sun reported that Leary had obtained a TRO against Dixon. This marked the beginning of extensive local publicity about the bus incident and its aftermath. Flynn was quoted frequently in the paper and appeared on local television stations and radio shows talking about his version of events. The president of the IBPO, Kenneth Lyons, hosted a local television show produced and paid for by the union; he used this show over the following year to defend the male officers and disparage Dixon, the police chief, and the city manager for pursuing their investigation. His comments grew increasingly vicious and were the basis for Dixon's defamation claim against Lyons and the IBPO, as well as part of the basis for her retaliation claims.

At the conclusion of the internal investigation in the spring of 1999, the city fired Leary and suspended Flynn, Pender, and some of the other officers. The officers appealed to the Civil Service Commission, which held additional hearings that fall. In the interim, Jose Rivera, one of the disciplined officers, filed an internal sexual harassment claim against Dixon. So did another officer who co-taught DARE summer camps with Dixon, further disrupting her work at the school. Both claims were later determined to be unfounded.

In January 2000, the Civil Service Commission dismissed the charges against Flynn² and a few of the other officers, finding insufficient evidence to sustain the charges against them. It also determined that Dixon's testimony regarding Pender's alleged indecent exposure, Flynn's allegedly inappropriate comments to the bus driver, and various other...