Sharp v. City of Houston

Page 1164

960 F.Supp. 1164

Patrice SHARP, Plaintiff, v. The CITY OF HOUSTON, et al., Defendants.

Civil Action No. H-94-4168.

United States District Court, S.D. Texas, Houston Division.

March 11, 1997.

Katherine Louise Butler, Butler & Harris, Houston, TX, for Plaintiff.

City of Houston-Brian J. Begle, Houston City Attorney's Office, Edgar Bice & Wayne Hankins-Richard H. Cobb, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendants City of Houston ("the City"), Dale Brown ("Brown"), Dennis Storemski ("Storemski") and Sam Nuchia's ("Nuchia") Motion for Summary Judgment (# 38). These defendants seek summary judgment on Plaintiff Patrice Sharp's ("Sharp") claims of sexual discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII") and on her claim of "pervasive departmental misconduct" under 42 U.S.C. § 1983. Two additional defendants, Sergeant Edgar Bice ("Bice") and Lieutenant Wayne Hankins ("Hankins"), have not moved for summary judgment.

Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the motion for summary judgment should be granted in part and denied in part.

I. Background

In August 1989, Sharp, an officer with the Houston Police Department ("HPD") since 1986, was assigned to the Mounted Patrol Unit. Sharp alleges that not long thereafter, she began to be subjected to frequent sexual harassment by her immediate supervisor, Bice, and later by Bice's supervisor, Hankins. Sharp contends that although Bice began harassing her in 1989, the most egregious incidents occurred after Hankins became the head of the Mounted Patrol Unit in 1991. Sharp maintains that Bice's previous lieutenant had kept Bice's behavior in check to some degree, but when Hankins took over, Hankins joined Bice as a perpetrator.

According to Sharp, Hankins would regularly tell crude and offensive jokes during morning roll calls, which were normally attended by the officers at the beginning of the day. The fact that offensive jokes were told is corroborated by the statements of Hankins and Officer Raymond Smith, an officer with the K-9 trailing detail, and the deposition testimony of Officer Mark Montgomery ("Montgomery"). Montgomery also reported the following incident:

I was present at a Mounted Patrol roll call when Lt. Hankins walked in and walked up to Officer Sharp. I observed Officer Sharp sitting in a chair in the roll call room. I observed Lt. Hankins walk up to her and make some remark about oral sex and unzip his pants with his crotch directly in front of Officer Sharp's face. I observed Lt. Hankins make a joke about the encounter and laugh.

According to another witness to the incident, Sergeant J.W. Brown ("Sgt.Brown"), Hankins had his crotch within approximately eight inches of Sharp's face.

Sharp maintains that on an least two other occasions, Hankins responded to job-related inquiries from Sharp "by grabbing his crotch and saying `take care of this' and `chew on this.'" Sharp also maintains that Hankins often screamed profanities at her. On one occasion, according to Sharp, she requested compensatory time off rather than paid overtime, which precipitated Hankins's screaming at her, liberally making use of the "F-word." Sharp maintains that male officers had requested and received compensatory time off from Hankins without incident. Sharp also alleges that on several occasions, Hankins yelled at her and her partner, Monica Johnson ("Johnson"), from his vehicle that he had caught them "fucking off" again. Additionally, Sharp asserts that at the Republican National Convention ("RNC") in the summer of 1992, Hankins "dropped his pants to display his underwear in front of several officers, including Officer Sharp." On another occasion, according to Sharp, she and Officer Chuck Kennedy ("Kennedy") drove into the parking lot of the Mounted Patrol stables and witnessed Hankins urinating off of the porch of the Mounted Patrol office. This incident was purportedly witnessed by Bice, Sgt. Brown, Officer Fred Highland, as well as Sharp and Kennedy. Sharp maintains that Kennedy denied witnessing the incident and even being present in the patrol car with Sharp that day.

Bice's behavior, according to Sharp, grew worse under Hankins's supervision. According to Montgomery, Bice would refer to Sharp's breasts as "headlights." If Sharp bent over to pick something up, he would say "hold that position, gal," swiveling his hips to simulate sexual intercourse. Bice also allegedly made a comment that Sharp should enter a wet T-shirt contest. Bice purportedly made such comments not only in private but often in front of other police officers, which was corroborated by Mary Alice Jones ("Jones"), a secretary at Mounted Patrol. According to Jones, Bice's supervisor, Hankins, would never express disapproval of Bice's conduct when he observed such behavior. On one occasion, according to Sharp, Bice sat on her lap in front of Jones. Sharp maintains that Bice would make suggestive comments to her and leer offensively. Johnson's statement corroborates Sharp's assertion that Bice once jokingly referred to Sharp, Johnson, and himself as being in a "sandwich," taken by Sharp and Johnson to mean a "sexual threesome." According to Sharp, if she "sought his permission to deal with personal matters such as vacation time, child-care related issues, and compensatory time, Sgt. Bice often remarked in response that he had keys to a hotel room and they could go there to `discuss it.'" He also allegedly made the frequent remark that "the couch in his office made into a bed, suggesting that she use it, and raising his eyebrows in an ogling manner." In June 1993, Bice allegedly reacted to Sharp's request for vacation time by saying that he would only approve it if she brought him a picture of herself on a nude beach. Sharp maintains that Sergeant Russell Chapman ("Chapman") witnessed this incident.

Sharp alleges that in early 1993, Bice "crept up behind her, put his hands on her shoulder and kissed her in her right ear." This incident was witnessed by Jones. Sharp maintains that Johnny Sessums also witnessed the incident. Sharp contends that "this was particularly disturbing because it indicated to Officer Sharp that the harassment was now at a new level-Sgt. Bice was now a physical threat and Officer Sharp was afraid to be alone with him." Not long after this incident, Sharp approached Sgt. Brown, another sergeant assigned to the Mounted Patrol Unit, allegedly in confidence due to fear of retaliation, to discuss her situation and inquire about the possibility of transferring to his squad. The deposition testimony of Johnson corroborates the assertion that she accompanied Sharp to request Sgt. Brown's help with a transfer for both of them. According to Sharp's declaration, she would not have to be "in direct contact" with Bice if she was transferred into Sgt. Brown's squad. Sgt. Brown later convinced Sharp that he needed to tell Hankins of Bice's misconduct and assured her that he would try to effect the transfer. According to Sharp's declaration, Sgt. Brown told Sharp that he had spoken to Hankins in February 1993, "but the harassment did not stop, and we were not transferred into Sergeant Brown's squad until after Officer Abel Devora's (`Devora') complaint approximately five months later."

In July 1993, Sergeant J.R. Dziedzic ("Dziedzic"), a sergeant in the same division, initiated an inquiry into practices at Mounted Patrol. The inquiry was instigated as the result of a complaint by Devora, who believed that his transfer from Mounted Patrol was motivated by racism. Sharp purportedly was quite reluctant to discuss with Dziedzic whether sexual harassment had occurred in the squad, as she had observed Bice reading the "supposedly confidential" statements given by other officers. Sharp alleges that "[s]ince Dziedzic had not even taken steps to protect the confidentiality of statements, she knew that her fellow officers would not report the truth." Sharp was also apparently mindful of the possibility of retaliation from Bice and Hankins, because Bice had allegedly told Sharp that "he would get rid of her if she ever crossed him." Additionally, Sharp maintains that other women officers had complained about mistreatment, which only resulted in them being given the label "bitch."

Bice acknowledges discussing the pending investigation into Mounted Patrol's practices in roll call and saying, "Get your story and stick with it," or words to that effect. Bice also allegedly told other officers that Sharp was under investigation, which was incorrect. According to Sharp, at that point, she brought her complaints to the attention of the Internal Affairs Division ("IAD") of the HPD.

Sharp makes numerous allegations relating to improprieties in the way the investigation was handled. For example, in her complaint, she alleges:

23. The department's written procedures require that a complaint of violation of federal or state law-which Officer Devora's complaint certainly contained-be investigated by the Internal Affairs Division.... Despite this policy, the matter was not initially referred to the Internal Affairs Division. Instead, Assistant Chief Dennis Storemski and Captain Dale Brown intentionally circumvented departmental orders in performing an "internal inquiry" of the matter.

24. When Lt. Terry Coilman of the Internal Affairs Division learned of the allegations included in Mr. Devora's complaint, he concluded that this was not appropriately a divisional matter and that, instead, it was a matter for the Internal Affairs Division. In clear violation of departmental procedures, Captain Dale Brown thereafter called Lt. Collman and told him he could not pursue his investigation. The Chief of Police, Sam Nuchia, initially agreed with this decision. After a meeting with...