Filed: Jul. 21, 2004
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 July 21, 2004 No. 02-30499 Charles R. Fulbruge III Clerk CHARLES ALBRIGHT, III, ET AL., Plaintiffs, CHARLES ALBRIGHT, III; MICHAEL ALLSBROOK; BRUCE BOND, SR; PETE BOWEN; SAMUEL BUA; ANTHONY CAPRERA; JOHN CASTELLUCCIO; DAVID DAUGHTRY; GAROLD FAYARD; WALTER GIFFORD; MICHAEL GOODSON; STANLEY HOOGERWERF; EDWARD HIRSTIUS; GARY LEE; ISIDRO MAGANA; PAUL MCCASKELL; NORMAN MCCORD, JR; MICHAEL RICE;
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit July 21, 2004 No. 02-30499 Charles R. Fulbruge III Clerk CHARLES ALBRIGHT, III, ET AL., Plaintiffs, CHARLES ALBRIGHT, III; MICHAEL ALLSBROOK; BRUCE BOND, SR; PETE BOWEN; SAMUEL BUA; ANTHONY CAPRERA; JOHN CASTELLUCCIO; DAVID DAUGHTRY; GAROLD FAYARD; WALTER GIFFORD; MICHAEL GOODSON; STANLEY HOOGERWERF; EDWARD HIRSTIUS; GARY LEE; ISIDRO MAGANA; PAUL MCCASKELL; NORMAN MCCORD, JR; MICHAEL RICE; ..
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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 July 21, 2004
No. 02-30499 Charles R. Fulbruge III
Clerk
CHARLES ALBRIGHT, III, ET AL.,
Plaintiffs,
CHARLES ALBRIGHT, III; MICHAEL ALLSBROOK; BRUCE BOND, SR; PETE
BOWEN; SAMUEL BUA; ANTHONY CAPRERA; JOHN CASTELLUCCIO; DAVID
DAUGHTRY; GAROLD FAYARD; WALTER GIFFORD; MICHAEL GOODSON; STANLEY
HOOGERWERF; EDWARD HIRSTIUS; GARY LEE; ISIDRO MAGANA; PAUL
MCCASKELL; NORMAN MCCORD, JR; MICHAEL RICE; JOHN RONGUILLO; JAY
SAACKS; TROY SAVAGE; JAMES SCOTT; FENNER SEDGEBEER; DAVID SLICHO;
LEROY SMITH, JR; LARRY STOKEY; JAMES W WARD; JULIE WILSON;
CLIFFORD WOOD; DENNIS DEJEAN; JOHN FAVALARO, III; MARJORIE
POWELL; MICHAEL GLASSER; STEPHEN DUNN; EARLE FRISARD
Plaintiffs/Appellants/Cross-Appellees,
VERSUS
THE CITY OF NEW ORLEANS, ET AL.,
Defendants,
THE CITY OF NEW ORLEANS
Defendant/Appellee/Cross-Appellant,
and
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,
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BARRY FLETCHER; STEPHEN DUNN; MICHAEL GLASSER; EARLE 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
Appeals from the United States District Court
for the Eastern District of Louisiana
(96-CV-679)
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:*
Plaintiffs/appellants/cross-appellees Charles Albright, III
and 34 other New Orleans police officers ("Albright plaintiffs")
sued defendant/appellee/cross-appellee City of New Orleans
("City"), among others, for discriminatory hiring practices in
promoting New Orleans police officers to sergeant and lieutenant
positions. Both parties now argue that the district court abused
its discretion in awarding $434,278.90 in compensatory damages to
*
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.
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the Albright plaintiffs. For the following reasons, we affirm.
I.
This case is one of several suits filed by white New Orleans
police officers challenging the promotion policies of the New
Orleans Police Department ("NOPD"). The Albright plaintiffs are 35
white NOPD police officers and sergeants who were on a list of
those eligible for promotion to the ranks of sergeant and
lieutenant. They allege that they were passed over for promotion
in favor of black officers during a round of promotions in March
1995.
Promotions among the ranks of the NOPD are governed by the
rules and regulations of the Civil Service Commission ("CSC").
Officers seeking promotion to the ranks of sergeant and lieutenant
take an examination administered by the CSC, which then creates a
promotional register that ranks the passing candidates according to
their performance on the exam. When promotions are awarded,
officers from the most recent promotional register are selected.
In March 1995, promotions to the ranks of sergeant and
lieutenant were also governed by the terms of the consent decree
entered into by the City and plaintiffs in Williams v. City of New
Orleans, C.A., No. 73-629. The Williams consent decree was
designed in part to provide equal employment opportunities within
the NOPD and to eliminate the effects of prior racial
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discrimination. As part of that program, officers on the
promotional rosters were grouped into "bands" according to their
scores on the CSC's examination. All promotions were to be made
first from the band with the highest scores (the lower numbered
bands) until that band was exhausted, and then from the band with
the second highest scores and so forth until the list expired. All
candidates in a band were deemed of equal qualification for
purposes of promotion.
The Williams decree also created "supernumerary" or
"additional" positions that could only be filled by black police
officers. Promotions to these positions could be filled by a black
candidate from a higher numbered band without exhausting the
current band if no black officers remained in the current band.
Besides these supernumerary positions, promotions were to be made
in strict accordance with the band system's exhaustion requirements
and the City was forbidden to unlawfully discriminate on the basis
of race or color against any employee of NOPD.
In October 1994, Police Superintendent Richard J. Pennington
began his tenure with NOPD. By March 3, 1995, when the promotions
at issue were made, all officers in Bands 1 through 4 of the
sergeants roster had been promoted to the rank of sergeant. In
Band 5, all of the black officers had been promoted, leaving 34
non-black officers. Band 6 consisted of both black and non-black
officers. All of the supernumerary sergeant positions were filled.
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Thus, according to the terms of the decree, the 34 non-black
officers remaining in Band 5 had to be promoted to sergeant before
any officers, including black officers, in Band 6 could be
promoted.
Nevertheless, on March 3, 1995, the City bypassed all but 1 of
the 34 candidates in Band 5 to promote black officers from Band 6
to the rank of sergeant. This was accomplished by promoting black
sergeants in supernumerary positions to the rank of lieutenant,
thereby freeing up several supernumerary sergeant positions. Under
the terms of the decree, the City was then able to promote black
sergeant candidates from Band 6 to fill the now-vacant
supernumerary positions.
As for promotions to the rank of lieutenant, on March 3, 1995,
all sergeant candidates in Bands 1 through 3 of the lieutenants'
register had been promoted to lieutenant, thereby exhausting those
bands. Three supernumerary lieutenant positions were vacant. Band
4 consisted of 34 officers, including 5 black officers. On March
3, 1995, the City promoted 6 officers - the 5 black officers and 1
white officer - from Band 4 into regular (non-supernumerary)
lieutenant positions. With the promotion of the 5 black candidates
from Band 4, the City was then able to bypass the remaining 28
non-black officers in Band 4 to promote 3 black officers from Band
5 into the 3 vacant supernumerary positions. Thus, the City
promoted a maximum number of black candidates by selecting black
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candidates from Band 4 to fill regular non-supernumerary positions.
In February 1996, the Albright plaintiffs filed suit against
the following defendants: the City of New Orleans,
then-Superintendent Pennington, then-Mayor Marc Morial, and
then-Chief Administrative Officer Marlin Gusman. In their original
complaint, the Albright plaintiffs alleged that the City was in
violation of the Williams consent decree. They later sought to
amend their complaint to assert claims of intentional race
discrimination under Title VII, but in January 1999, the district
court dismissed these claims as time-barred. In April 1999, the
remaining claims were tried and judgment was rendered in favor of
the defendants.
Plaintiffs appealed, and in November 2000, this court affirmed
the district court’s judgment in favor of the defendant on the non-
Title VII claims, but reversed the district court's finding that
the Title VII claims were time-barred and remanded these claims for
a trial on the merits.2 On remand, the parties agreed to separate
the issues of liability and damages. On June 26, 2001, after a
bench trial, the district court found the City liable for
impermissibly considering race when selecting officers for
promotions in violation of Title VII and the Fourteenth Amendment,
but dismissed all claims against the remaining defendants.
2
Albright v. City of New Orleans, No. 99-30504, Nov. 1, 2000
(unpublished).
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On January 24, 2002, after a one-day bench trial on damages,
the district court found the City liable for $434,278.90 in
compensatory damages, as well as post-judgment interest and
reasonable attorneys' fees. The Albright plaintiffs timely
appealed and the City cross-appealed.3 Both parties challenge the
amount of Title VII compensatory damages the district court
awarded. The Albright plaintiffs contend that the award was
insufficient to compensate them for their damages, and the City
asserts that the award was excessive.
II.
Under Title VII, "[i]f the court finds that the respondent has
intentionally engaged in ... an unlawful employment practice
charged in the complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and order such
affirmative action as may be appropriate, which may include, but is
not limited to, reinstatement or hiring of employees, with or
without back pay ... or any other equitable relief as the court
3
Because the Albright plaintiffs have not challenged the
dismissal of its claims against Mayor Morial, Superintendent
Pennington, and CAO Gusman, they are not parties to this appeal.
Another group of New Orleans police officers (Fletcher plaintiffs)
did file a brief in case its appeal in Case No. 01-30742 was deemed
premature. But another panel of this court has determined that
their appeal was not premature and have adjudicated their claims.
Albright v. City of New Orleans, 2003 WL 21919429, at *3 (5th Cir.
Aug. 11, 2003)(unpublished). Therefore, it is not necessary to
consider the issues raised in the Fletcher plaintiffs’ brief here.
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deems appropriate."4 “In formulating relief in employment
discrimination cases, the court has broad discretion to fashion
remedies as the equities of a particular case compel.”5 Courts
should attempt to fashion remedies that serve the purposes of Title
VII, which are to compensate the victims of past discrimination and
deter employers from discriminating in the future.6 And as an
appellate court, "[w]e will not intervene absent a showing of clear
abuse."7
III.
The district court awarded a total of $434,278.90 in
compensatory damages; the court arrived at this figure by using
calculations from the economic experts of both sides. First, the
court used the calculations of plaintiffs’ expert Dr. Bernard
Pettingill to determine how much a promotion was worth to each
individual plaintiff based on the additional wages and retirement
benefits each officer would have received had they been promoted.
4
42 U.S.C. 2000e-5(g)(1).
5
U.S. v. Criminal Sheriff, Parish of Orleans,
19 F.3d 238,
239-40 (5th Cir. 1994)(citing LeBlanc v. Southern Bell Tel. & Tel.
Co.,
460 F.2d 1228, 1229 (5th Cir. 1972)).
6
See Walsdorf v. Bd. of Cmm'rs for the E. Jefferson Levee
Dist., 857 F.2d 1047, 1054 (5th Cir. 1988).
7
Criminal Sheriff, Parish of Orleans, 19 F.3d at 239-40
(citing Harper v. Thiokol Chem. Corp.,
619 F.2d 489, 494 (5th
Cir.1980); Local 53 v. Vogler,
407 F.2d 1047, 1052-53 (5th
Cir.1969)).
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These calculations took into account the various circumstances of
each individual officer, including the officer’s age, the officer’s
years of service, and whether the officer had subsequently been
promoted or retired.8
After determining the value of a promotion for each officer,
the district court compared the likelihood that an officer would be
promoted absent discrimination with the actual rate at which the
plaintiffs had been promoted. To do this, the district court used
calculations provided by Dr. Boudreaux.9 He determined that 10.7%
(13 of 121) of all of the eligible officers, white and non-white,
were promoted to sergeant, but that only 1.1% (1 of 90) of the
white eligible officers were promoted. Thus, the discrimination
caused a 9.6% (10.7% - 1.1%) change in the chances of a white
8
The defendants’ expert Dr. Kenneth Boudreaux also
calculated the monetary value of a promotion for each individual
plaintiff, but the court did not use his calculations after
concluding that these calculations were based on “arbitrary” cut-
offs. In determining the value of a promotion, Dr. Boudreaux’s
first set of calculations assumed that the plaintiffs’ losses were
cut-off on October 7, 1995, when the City made its next round of
promotions. In his second set of calculations, Dr. Boudreaux’s
calculations assumed that the losses of the police officers not
promoted were cut-off on April 15, 1998, and that the losses of the
sergeants not promoted ended on April 16, 1999. He used these
dates because that was when the next Civil Service Registers, which
determine who is still eligible for promotion based on more recent
test scores, were approved for each position. In rejecting these
calculations, the district court also noted that Dr. Boudreaux
testified that his calculations probably would have been similar to
Dr. Pettingill if these cut-off dates had not been used.
9
Dr. Pettingill did not calculate the likelihood that a
plaintiff would have been promoted absent discrimination.
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officer being promoted to sergeant. He did the same analysis for
lieutenant promotions, finding that 18.2% (6 of 33) of all eligible
sergeants were promoted to lieutenant, but only 3.6% (1 of 28) of
eligible white sergeants were promoted to lieutenant. Therefore,
he concluded that the discrimination caused a 14.6% (18.2% - 3.6%)
change in the chances of a white sergeant being promoted to
lieutenant.
The district court then multiplied the monetary value of the
promotion as to each officer as calculated by Dr. Pettingill by the
percentage differentiation that the discrimination caused as
calculated by Dr. Boudreaux. The total award for all of the
Albright plaintiffs equaled $434,278.90, with each individual
officer receiving different amounts ranging from $404.71 to
$28,797.04 depending on that officer's particular circumstances,
such as the officer’s age, the officer’s years of service, and
whether they have subsequently been promoted or retired.10
10
The individual awards were as follows: Albright,
$11,259.98; Allsbrook, $9,492.10; Bono, $17,215.74; Bowen,
$11,647.49; Bua, $28,797.04; Caprera, $1,515.74; Castellucio,
$10,159.39; Daughtry, $11,288.16; Dejean, $9,856.03; Dunn,
$17,715.49; Favalaro, $12,500.93; Fayard, $11,349.22; Firsard,
$16,335.21; Gifford, $12,637.06; Glasser, $19,468.37; Goodson,
$9,906.53; Hirstius, $12,650.30; Hoogerwerf, $1,773.90; Lee,
$9,621.22; Magana, $10,110.43; McCaskell, $2,354.88; McCord,
$12,587.14; Powell, $8,679.74; Rice, $20,579.22; Ronguillo,
$10,903.39; Saaks, $12,819.84; Savage, $14,314.86; Scott, $404.71;
Sedgebeer, $18,623.61; Slicho, $14,026.66; Smith, $10,644.77;
Stokey, $13,793.86; Ward, $12,055.78; Wilson, $19,855.27; Wood,
$11,424.29.
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IV.
Both parties contend that the district court abused its
discretion in calculating damages. The Albright plaintiffs take
issue with the district court's pro rata methodology, arguing that
the court should have either awarded the full monetary value of the
promotion to each plaintiff or forced the City to promote all of
the plaintiffs. Alternatively, the Albright plaintiffs argue that
even if a pro rata method was permissible, the district court
should have divided the total value of the promotions actually made
by the number of plaintiffs. The City asserts the district court
erred in using Dr. Pettingill’s calculations on the value of a
promotion instead of Dr. Boudreaux’s calculations, which were based
on cut-off dates.
A.
The Albright plaintiffs contend that the district court abused
its discretion in using a pro rata method in determining damages
because the number of promotions was not fixed. This argument is
not persuasive. We have previously approved of district courts
using a pro rata methodology in determining damages for Title VII
plaintiffs when there were not enough positions for all of the
eligible employees.11 In fact, other circuits have held that a
11
U.S. v. U.S. Steel Corp.,
520 F.2d 1043, 1056 (5th Cir.
1975); Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211, 260
(5th Cir. 1974).
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district court abused its discretion when it failed to use a pro
rata approach in such a situation.12
The plaintiffs contend that our situation is distinguishable
from the other situations in which a pro rata approach was used
because in our case the number of officers promoted was directly
tied to the number of black officers eligible for promotion.
Therefore, they assert that it is impossible to tell how many
promotions the City would have made absent discrimination. Because
it is impossible to determine the number of promotions, the
plaintiffs contend, relying on Trout v. Garrett,13 a D.C. district
court decision, that the application of a pro rata method would not
fairly compensate the plaintiffs. As a result, they maintain that
the district court should have either promoted each officer or
awarded each individual officer the full value of the promotion
12
Dougherty v. Barry, 869 F.2d 605, 614-15 (D.C. Cir.
1989)(holding that the district court abused its discretion because
“the district court should have awarded each appellee a fraction of
the promotions' value commensurate with the likelihood of his
receiving one of the promotions”); U.S. v. City of Miami,
195 F.3d
1292 (11th Cir. 1999)(holding that the district court abused its
discretion in a reverse discrimination case involving the Miami
police department because the court awarded each plaintiff a full
award even though there were not enough positions available for all
the discriminated-against officers); see also Ingram v. Madison
Square Garden Ctr., Inc.,
709 F.2d 807, 812 (2d Cir. 1983); Hameed
v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers,
Local Union No. 396,
637 F.2d 506, 519-21 (8th Cir. 1980); Stewart
v. General Motors Corp.,
542 F.2d 445, 452-54 & n.7 (7th Cir.
1976).
13
780 F. Supp. 1396 (D.D.C. 1991).
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with no reduction based on each officer's chances of receiving the
promotion.
In Trout, a D.C. district court reviewed a Special Master’s
Title VII damage award for 93 female plaintiffs who had numerous
distinct occupations within the Navy and were discriminated against
both at hiring and during promotions over the course of seven
years.14 The Navy, relying on Dougherty v. Barry,15 a D.C. Circuit
opinion advocating the use of a pro rata approach, argued that the
Special Master erred in not assessing damages by dividing the
value of the promotions by the number of plaintiffs.16 The district
court rejected the Navy’s argument and found that Daugherty was
distinguishable because the variety in the types of positions and
the uncertainty as to the actual number of vacancies made it
impossible to calculate damages based on a fixed number of
positions.17
But our situation is different. Here, there was one discrete
event (the March 3, 1995 promotions), a fixed category of similarly
situated individuals (officers eligible for promotion to sergeant
and sergeants eligible for promotion to lieutenant), and the effect
14
Id. at 1400-01.
15
869 F.2d 605 (D.C. Cir. 1989).
16
780 F. Supp. at 1406.
17
Id. at 1406-08.
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of the discrimination was clearly limited to the denial of a
specific promotion. In contrast, in Trout there were 93 plaintiffs
who held dissimilar jobs, were denied dissimilar promotions, and
were discriminated against over the course of seven years.18
Moreover, during the damages trial, the district court did not
receive any evidence showing that the City would have promoted a
different number of officers as part of their discrimination
scheme. In fact, there was evidence to the contrary. When
promotions were handed out on March 3, 1995, one white officer was
promoted to sergeant and one white sergeant was promoted to
lieutenant. Because not only black officers were promoted, the
district court was not required to conclude the scheme was intended
to promote only black officers or that the number of promotions was
tied to the number of eligible black officers. Therefore, the
district court did not clearly err in concluding that there were a
fixed number of promotions and did not abuse its discretion in
using a pro rata approach because there were more eligible officers
than positions. Accordingly, the district court was not required
to promote every officer or to award each plaintiff the full value
of a promotion.
The Albright plaintiffs also argue that even if the district
court could use a pro rata approach, the district court erred in
18
Id. at 1401.
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assessing damages because the district court should have taken the
full value of each promotion,19 divided it by the number of
plaintiffs, and then awarded that amount to each plaintiff. This
argument is also without merit. Calculating damages in this manner
only makes sense if one assumes that the Albright plaintiffs would
have received all of the promotions. But considering that the
Albright plaintiffs consisted of only 23 of the 121 (19%) officers
eligible for promotion to sergeant and 11 of the 33 (33%) sergeants
eligible for promotion to lieutenant, this is an improper
assumption.
B.
The City contends that the district court should have limited
its calculation of damages to the date when the Albright plaintiffs
were restored to a position of equal opportunity. It asserts that
the district court’s failure to so limit damages provides a
windfall to the plaintiffs because an officer could have been
promoted at any time after March 3, 1995, the promotion date at
issue here. Therefore, the City contends that the district court
should have used Dr. Boudreaux’s calculations of the monetary value
19
The value of the promotion would be based on Dr.
Pettingill’s calculations of the average value of a lost promotion.
According to those figures, the average value of a promotion to
sergeant was worth $111,817.00 and the average value of a promotion
to lieutenant was worth $137,045.00. However, in making these
calculations, Dr. Pettingill did not use all of his figures for the
individual plaintiffs, exempting some of the lower and higher
figures as statistical outliers.
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of a promotion rather than Dr. Pettingill’s. As explained above,20
Dr. Boudreaux provided two sets of calculations for the value of a
lost promotion. The first cut off any consideration of damages
that occurred after October 7, 1995, when the City made its next
round of promotions, and the second cut off any consideration of
damages after April 15, 1998 for sergeants and April 16, 1999 for
lieutenants. These dates are when the next Civil Service
Registers, which re-determined eligibility for promotions based on
new test scores, were approved.
But the City's argument is not persuasive. The district court
has wide latitude in fashioning remedies in Title VII cases,21 and
the City has not shown that any appellate court has ever ruled that
a district court erred in failing to limit damages by applying a
cut off date. More importantly, the City has provided no evidence
that the district court’s award has caused any individual officer
to receive a windfall. The district court’s calculations reduced
damage awards for officers who have been promoted in the six years
since the March 3, 1995 promotion date. Finally, as the City
acknowledges, the loss to the plaintiffs is a loss of the
statistical probability of being promoted on March 3, 1995.
Because the plaintiffs can never again be considered for that round
20
See supra n.8.
21
Criminal Sheriff, Parish of Orleans, 19 F.3d at 239-40.
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of promotions, the loss in statistical probability is permanent;
thus it is appropriate to calculate the full amount of damages for
that statistical loss without regard to a cut-off date.
Accordingly, the district court did not abuse its discretion in
using Dr. Pettingill’s, rather than Dr. Boudreaux’s calculations,
in determining the value of a promotion to an individual plaintiff.
V.
Because the district court did not abuse its discretion in
assessing damages in this Title VII discrimination suit, we AFFIRM.
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