Filed: Aug. 11, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 11, 2003 _ Charles R. Fulbruge III 01-30742 Clerk _ CHARLES ALBRIGHT, III; ET AL., Plaintiffs, MICHAEL GLASSER; STEPHEN DUNN; EARLE FRISARD, Plaintiffs-Appellants, versus THE CITY OF NEW ORLEANS; ET AL., Defendants, THE CITY OF NEW ORLEANS; MARC H. MORIAL, Individually And In His Official Capacity As Mayor Of The City Of New Orleans; RICHARD PENNINGTON, Individually And In His Offic
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 11, 2003 _ Charles R. Fulbruge III 01-30742 Clerk _ CHARLES ALBRIGHT, III; ET AL., Plaintiffs, MICHAEL GLASSER; STEPHEN DUNN; EARLE FRISARD, Plaintiffs-Appellants, versus THE CITY OF NEW ORLEANS; ET AL., Defendants, THE CITY OF NEW ORLEANS; MARC H. MORIAL, Individually And In His Official Capacity As Mayor Of The City Of New Orleans; RICHARD PENNINGTON, Individually And In His Offici..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2003
____________________
Charles R. Fulbruge III
01-30742 Clerk
____________________
CHARLES ALBRIGHT, III; ET AL.,
Plaintiffs,
MICHAEL GLASSER; STEPHEN DUNN; EARLE FRISARD,
Plaintiffs-Appellants,
versus
THE CITY OF NEW ORLEANS; ET AL.,
Defendants,
THE CITY OF NEW ORLEANS; MARC H. MORIAL, Individually
And In His Official Capacity As Mayor Of The City Of
New Orleans; RICHARD PENNINGTON, Individually And In
His Official Capacity As Superintendent Of Police For
The City Of New Orleans,
Defendants-Appellees.
_________________________________________________
BARRY FLETCHER; ET AL.,
Plaintiffs,
BARRY FLETCHER; STEPHEN DUNN; MICHAEL GLASSER;
EARL J. FRISARD; BRUCE LITTLE,
Plaintiffs-Appellants,
versus
THE CITY OF NEW ORLEANS; ET AL.,
Defendants,
THE CITY OF NEW ORLEANS; RICHARD J. PENNINGTON,
Individually And In His Official Capacity As
Superintendent Of Police For The City Of New Orleans;
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-2523)
_________________________________________________________________
Before SMITH and BARKSDALE, Circuit Judges, and DUPLANTIER,
District Judge1.
PER CURIAM:2
Several New Orleans police officers contest the judgment,
after a bench trial, dismissing their race discrimination claims.
Primarily at issue is whether the district court clearly erred in
finding the City offered proper reasons for requesting that its
Civil Service Commission not extend a promotional register.
AFFIRMED.
I.
The police department developed a promotional register for
prospective lieutenants which remained in effect from May 1994 to
November 1998. The register grouped promotion-candidates into six
bands, corresponding to their performance on an examination for
promotion to lieutenant, administered in 1992. The test had been
developed in 1991. This procedure was mandated by a 1987 consent
decree in Williams v. City of New Orleans, Civ. Action No. 73-629.
1
District Judge for the Eastern District of Louisiana,
sitting by designation.
2
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
2
The Williams decree required, together with the above-described
bands, the creation of supernumerary positions to be filled only by
black officers. Those positions could be filled by black officers
from lower bands than the one being used, if no black officers were
in that band. The consent decree also mandated that lieutenants
were to make up 4.9 percent of the force, and that the decree would
end upon the expiration of the second promotional register compiled
under it.
The City’s Civil Service Commission (CSC) was in charge of
maintaining the register, which was to remain in effect for no less
than one year. The CSC’s Director then had sole discretion to
continue the register’s use for another two years. Any extension
beyond that total three years was a decision for the CSC.
The second register compiled pursuant to the consent decree
was established in May 1994. In March 1995, all 16 officers in
bands one through three were promoted to lieutenant, as well as six
officers in band four, five of whom were that band’s only black
officers. Twenty-six white officers remained in band four. In
order to fill available supernumerary positions, and because no
black officers remained in band four, black officers in band five
were promoted. Accordingly, aside from any supernumerary positions
that might become available, any officer promoted thereafter to
lieutenant under the register would have to be a white officer from
band four.
3
By May 1997, three years had passed since the second register
had been compiled. Thus, it was for the CSC to determine whether
to extend its use. The CSC extended the register for three months
— through August 1997. That August, the City, through Police
Superintendent Pennington, requested that the CSC not further
extend the register, noting: (1) the test from which the register
was compiled “was based on performance and testing criteria
formulated in late 1991”; (2) a new test, which would incorporate
progressive policing tactics, was “essential in the identification
of the future leadership of the department”; and (3) no need was
foreseen to “promote additional Lieutenants in the immediate
future”.
In anticipation of that request, the plaintiffs in this action
— five white New Orleans police sergeants in bands four and five
(Fletcher plaintiffs) — sued and requested a temporary restraining
order against the City’s stating its preference to the CSC about
the register’s extension. Because the CSC extended the register
for six months, the action was dismissed as moot.
That September, the City requested that the CSC reverse its
six-month-extension decision, referencing the City’s August letter
and asking the CSC to “move expeditiously to administer a new test
which would correctly reflect those dimensions [the Superintendent]
ha[d] identified as critical in the leadership of th[e]
department”.
4
That October, the City again requested reconsideration of the
CSC’s register-extension decision. In so doing, Superintendent
Pennington again referenced the age and ineffectiveness of the
test:
It is of great importance that the future
leaders of the Department be chosen from those
who demonstrate knowledge and abilities
consistent with current policies, procedures
and strategies. Testing candidates,
emphasizing the vital dimensions of integrity,
accountability, and community policing is
essential in the identification of those
future leaders.
Also that October, the City promoted two officers. One was a
white band four sergeant; the other, a black band five sergeant
(supernumerary position).
That November, the CSC decided to terminate the register,
retroactive to August. The Fletcher plaintiffs again requested a
temporary restraining order against the termination, claiming it
violated 42 U.S.C. § 1983, LA. REV. STAT. § 23:1006 et seq. (unlawful
for employer to discriminate on basis of race), and LA. REV. STAT.
§ 51:2231 et seq. (“safeguard[ing]” individuals from racial
discrimination). (The complaint was later amended to, inter alia,
claim the termination-request also violated Title VII of the Civil
Rights Act, the Equal Protection Clause, and the Williams consent
decree.) The Fletcher plaintiffs alleged: the City did not want
to promote whites to lieutenant; and the City knew it would have to
do so to comply with the consent decree unless the register was
5
terminated, thereby ending the decree. A TRO was granted, to
remain in effect until the resolution of the Fletcher plaintiffs’
action.
The Fletcher plaintiffs’ action was consolidated with three
others concerning the department’s claimed discriminatory policies.
In January 1999, on the basis of a time-bar, summary judgment was
awarded the City against the Fletcher plaintiffs’ discrimination
claims. The Fletcher plaintiffs’ claims based on asserted
violations of the consent decree were tried to the bench and
dismissed.
The plaintiffs in the consolidated actions, including the
Fletcher plaintiffs, appealed. This court, inter alia, affirmed
the dismissal of the Fletcher plaintiffs’ consent decree claims,
but reversed the time-bar ruling against their discrimination
claims. Albright v. City of New Orleans, No. 99-30504 (5th Cir. 1
November 2000) (unpublished).
On remand, a bench trial was held. Pursuant to detailed
findings of fact and conclusions of law, the district court
dismissed the Fletcher plaintiffs’ discrimination claims, finding
the City had proper reasons for requesting the register’s
termination.
6
II.
The Fletcher plaintiffs challenge: (1) the ruling that the
City had proper reasons for requesting the termination; and (2) the
exclusion of certain testimony. (Although the decision adverse to
the Fletcher plaintiffs was rendered in a consolidated case and no
FED. R. CIV. P. 54(b) certification was entered, our court has
jurisdiction because the consolidation was not “clearly unlimited”
and the several actions could not have been brought as a single
action. In re Transtexas Gas Corp. v. TransTexas Gas, 303 F.3d
571, 577-78 (5th Cir. 2002) (quoting Ringwald v. Harris,
675 F.2d
768, 771 (5th Cir. 1982)).)
A.
Conclusions of law are reviewed de novo. E.g., Randel v.
United States Department of Navy, 157 F.3d 392, 395 (5th Cir.
1998). More relevant to this appeal, findings of fact are reviewed
only for clear error. E.g., Couch v. Cro-Marine Transport, Inc.,
44 F.3d 319, 327 (5th Cir. 1995). A finding of fact is clearly
erroneous when, on review of the record, we are left “with the
definite and firm conviction that a mistake has been committed”.
Id. (citation omitted).
The crux of this appeal is the claimed clear error in
crediting Superintendent Pennington’s testimony that he sought the
register-termination because the test upon which the register was
based was outdated and did not reflect the values the
7
Superintendent thought should be tested. Accordingly, primarily at
issue are findings of facts based on witnesses’ credibility. For
such findings, Federal Rule of Civil Procedure 52(a) “demands even
greater deference to the trial court[] ... for only the trial judge
can be aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding of and belief in
what is said”. Anderson v. Bessemer City, 470 U.S. 564, 575
(1985). See also, United States v. Bentley-Smith,
2 F.3d 1368,
1377 (5th Cir. 1993).
In a Title VII race discrimination action, a plaintiff must
present a prima facie case of discrimination. See, e.g., McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The City does not
contest the district court’s conclusion that the Fletcher
plaintiffs did so.
Once a prima facie case has been established, the defendant
must present legitimate, non-discriminatory reasons for the
employment action. E.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 507 (1993). Along this line, the Fletcher plaintiffs do not
contend the test’s obsolescence could not be a legitimate, non-
discriminatory reason for requesting the register’s termination.
Finally, if the defendant presents such reasons, the burden
shifts back to the plaintiff to show those reasons are pretextual.
E.g., Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143
(2000). It is on this point that the Fletcher plaintiffs claim the
8
district court clearly erred by crediting Superintendent
Pennington’s testimony.
The district court understood the City’s termination-request
to be based on two considerations: the need for a new test; and
not needing new lieutenants. As for the latter, evidence showed
that the department needed new lieutenants. For example, prior to
Superintendent Pennington’s writing the termination-request letters
to the CSC, the Chief Administrative Officer had written to the
Superintendent concerning 15 lieutenant vacancies. (At trial,
Superintendent Pennington did not recall that letter.) As also
noted, between the dates of the letters, two officers were promoted
to lieutenant; Superintendent Pennington testified the promotions
were made “because some people left [and the department] needed two
more lieutenants”.
The district court found: the evidence “significantly
undermined [the City]’s assertion that they sought to terminate the
[register] because NOPD did not need additional lieutenants in
1997”; and, Superintendent Pennington’s October promotion of the
two officers “preclude[d] a finding that he believed there was
absolutely no need for additional lieutenants during the pertinent
time period”.
The Fletcher plaintiffs seek mileage from the district court’s
rejection of this part of the City’s explanation. They cite the
court’s statement that the explanation’s veracity was “impugn[ed]”
9
and claim Superintendent Pennington testified “untruthfully” about
that explanation. Accordingly, plaintiffs contend, Superintendent
Pennington’s “overall credibility” was diminished, including as it
related to other reasons for requesting the register-termination.
It is apparent from Superintendent Pennington’s August,
September, and October 1997 letters to the CSC, however, that the
reason for the termination-request was the test’s obsolescence, not
the lack of need for new lieutenants. Indeed, only the August
letter referenced that lack. Moreover, even in that letter, the
reference served only to allay any fears the CSC might have had
about terminating the register based on Superintendent Pennington’s
stated reason that the test upon which the register was based was
too old. Along this line, it should also be noted that the “need”
to promote the two lieutenants in October arose after
Superintendent Pennington’s three letters to the CSC and over two
months after he wrote the only letter describing not needing new
lieutenants. In fact, the district court observed: “[I]t is a
disputed issue of fact as to whether ... [Superintendent]
Pennington knew about the shortage of lieutenants and non-
compliance [with the consent decree’s 4.9 percent ratio
requirement] when he sought to have the register expire”. In sum,
the district court’s rejection of the City’s no-new-lieutenants-
needed contention sheds almost no light on the pretextual nature
10
vel non of the City’s main explanation for the termination-request:
the test’s obsolescence.
As for this explanation, the district court held: “Plaintiffs
have failed to carry their burden of showing that the proffered
reason was false[,] much less a pretext for discrimination”. The
court noted that the test had been administered in 1992 and any
officer who had not taken it would not be eligible for promotion.
It ruled: “Given ... [Superintendent] Pennington’s goal to effect
change and improvement within [the police department], the
[d]efendants’ reluctance to allow the roster to run the full five
years permitted under [CSC] regulations ... is hardly proof of a
nefarious motive”.
Primarily on the basis of three items of evidence, the
Fletcher plaintiffs assert that the district court clearly erred in
its ruling. First, Superintendent Pennington testified that he did
not review the 1992 test to determine whether it tested for the
progressive techniques he desired. Second, when Superintendent
Pennington requested the register-termination, no new test was in
place from which a new register could be created. Finally, in
1996, one Fletcher plaintiff, Sergeant Glasser, passed a captain’s
examination, which met Superintendent Pennington’s criteria for
testing progressive techniques. Yet Superintendent Pennington
promoted a band five black officer to lieutenant in the October
1997 promotions, even though he had never taken such a test.
11
Superintendent Pennington’s not having personally reviewed the
1992 test is not critical. He testified that the national standard
was a two-year list. Superintendent Pennington became
Superintendent in October 1994. It was reasonable for him to seek
to impress his own values upon promotional registers and keep the
department more current by using a new test in place of one
developed six years, and administered five years, earlier. As he
testified: “There was [sic] so many factors involved and I thought
there would be a greater opportunity for the department to really
get the new candidates for ... lieutenant to prepare for an
examination based on [current policies, procedures, and strategies,
such as accountability and community policing]”. (Emphasis added.)
Along this line, although a new test had not been completed,
the Superintendent could have reasonably wanted to avoid making any
large-scale promotions on the basis of what he considered to be an
outdated test. As a result, there being no new test from which to
promote lieutenants does not show clear error. (Moreover, the
record conflicts as to how long it would take to create and
administer a new test. The City’s Personnel Director testified
that he told Superintendent Pennington it would take in the
“ballpark” of six to nine months to have a new test, and it might
take “up to nine months” to administer one.)
The Fletcher plaintiffs’ contention that Superintendent
Pennington disregarded the captain’s test in making the October
12
1997 promotions also fails to show clear error. First, as the
district court noted, Sergeant Glasser was one of “many individuals
who comprised the candidates on the roster”. More importantly, the
black officer with whom plaintiffs contrast Sergeant Glasser was
promoted to a supernumerary position.
In the light of our deferential standard of review, especially
for credibility determinations made by the district court, we
cannot say it committed clear error in crediting Superintendent
Pennington’s testimony that he had a legitimate, non-dicriminatory
reason for seeking register-termination. Along this line, the
October promotions of two sergeants to lieutenant strengthen,
instead of diminish, Superintendent Pennington’s credibility. One
of those promoted was a white officer. Had Superintendent
Pennington been motivated by racial animus to the point that he
would disregard the department’s need for lieutenants, he would
hardly be expected to promote that officer. Moreover, and as noted
by the district court, the CSC, an independent body, found
convincing Superintendent Pennington’s reason relating to the
test’s obsolescence. Finally, it, not the Superintendent or the
City, made the ultimate register-termination decision.
B.
The Fletcher plaintiffs challenge the district court’s not
admitting part of Deputy Chief Hewlitt’s testimony. The ruling is
reviewed for abuse of discretion. E.g., Celestine v. Petroleos de
13
Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001). Evidentiary
rulings are also subject to harmless error analysis. E.g., Green
v. Administrator of the Tulane Educational Fund,
284 F.3d 642, 660
(5th Cir. 2002) (affirmed unless substantial right affected (citing
United States v. Asibor,
109 F.3d 1023, 1032 (5th Cir.), cert.
denied,
522 U.S. 902 (1997))). See FED. R. EVID. 103.
Deputy Chief Hewlitt testified that: Superintendent
Pennington’s deputies had encouraged the promotion of black band-
four officers in order to maximize the benefit of the supernumerary
positions; she voiced some objection regarding that process to the
Superintendent; and she had spoken with the Superintendent
immediately before a black band-four officer was promoted in 1995.
The district court would not permit Deputy Chief Hewlitt, however,
to testify about the content of that 1995 conversation, ruling it
was irrelevant or, alternatively, unfairly prejudicial. A proffer
was made of that conversation.
For her proffer, Deputy Chief Hewlitt testified: after the
1995 promotion of the black band-four officer, she spoke with the
Superintendent to express concerns about that officer’s
disciplinary record; the 1995 promotion form would have indicated
a candidate’s race to the Superintendent; and the Superintendent
“[w]ould have understood the concern about the race of those who
were not being given fair consideration [in 1995]”.
14
Assuming arguendo that the ruling was erroneous, it was
harmless. First, the Fletcher plaintiffs’ claims relating to the
1995 promotions were time-barred. Moreover, Deputy Chief Hewlitt
testified that she did not mention the racial motivation of the
deputies when she spoke with the Superintendent. Accordingly,
Deputy Chief Hewlitt’s testimony about her discussion with the
Superintendent offers no basis to call into question the
Superintendent’s racial motivation vel non in 1997 for requesting
the register’s termination.
At most, Deputy Chief Hewlitt’s excluded testimony would raise
an issue concerning Superintendent Pennington’s credibility when he
testified that he did not remember the conversation with the Deputy
Chief about the 1995 promotions. As the district court noted
during trial, however, that inconsistency was established by Deputy
Chief Hewlitt’s admitted testimony.
III.
For the foregoing reasons, the judgment concerning the
Fletcher plaintiffs is
AFFIRMED.
15
