[PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                            FILED
                                                                       U.S. COURT OF APPEALS
                               ________________________                  ELEVENTH CIRCUIT
                                                                             MAR 30 2000
                                                                          THOMAS K. KAHN
                                      No. 97-8189                              CLERK
                               ________________________

                         D. C. Docket No. 93-02131-1-CV-WBH



A.M. ALEXANDER, CHARLES ALEXANDER, et al.,

                                                                   Plaintiffs-Appellees,

                                             versus

FULTON COUNTY, Georgia;
JACQUELYN H. BARRETT,
Individually and in her Official
Capacity as Sheriff of Fulton
County, Georgia,
                                                                   Defendants-Appellants.

                               ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                         _________________________
                                (March 30, 2000)
Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and HANCOCK*,
Senior District Judge.

  *
      Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
MARCUS, Circuit Judge:

      This case involves various claims of race discrimination brought by eighteen

current and former Fulton County Sheriff’s Department employees individually

and on behalf of all similarly situated white employees of the Sheriff’s Department

against Fulton County, Georgia and Sheriff Jacquelyn H. Barrett, in her official

and individual capacities (collectively, “Defendants”). Plaintiffs sued Fulton

County and Sheriff Barrett alleging that Fulton County maintained a “policy or

custom” of racial discrimination in employment decisions, that Fulton County and

the Sheriff’s Department engaged in a “pattern or practice” of employment

discrimination, and specifically that Fulton County and Sheriff Barrett

intentionally discriminated on the basis of race with respect to discipline,

promotions, transfers, reclassifications, promotional examinations, restorations of

rank, and appointments to unclassified positions. Defendants now appeal from a

jury verdict entered for most of the Plaintiffs finding that Fulton County

maintained a policy or custom of discrimination against white employees and that

Sheriff Barrett intentionally discriminated against white employees. After a

thorough review of the record, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.



                                          2
1.

           In September 1993, Plaintiffs1 filed their complaint as a class action alleging

a “pattern or practice” of employment discrimination against white personnel of

the Fulton County Sheriff’s Department in the terms and conditions of employment

in violation of 42 U.S.C. § 1981,2 42 U.S.C. § 1983,3 and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.4 In April 1994, the district court,


      1
       The Plaintiffs are: Major A.M. Alexander, Sergeant Charles “Tony” Alexander, Sergeant
Joseph Bantin, Sergeant Billy Bolt, Sergeant Denise Brooks, Lieutenant Robert Fox, Captain Gary
Gettis, Corporal Sara Henderson, Sergeant Kathy Jones, Lieutenant Carolyn Masson, Corporal
Donnnie McBee, Corporal Guerry “Bubba” Moore, Sergeant James NeSmith, Sergeant Joan
Paschal, Sergeant Heidi Schaefer, Sergeant Robert Smith, Sergeant Benjamin Steele, and Corporal
Robert Upshaw.
     2
       Section 1981 provides in pertinent part: “All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce contracts, to sue,
be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
     3
      Section 1983 provides, in relevant part, that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .”
     4
          42 U.S.C. § 2000e-2 provides in relevant part:
                  a) Employer practices
                  It shall be an unlawful employment practice for an employer–
                           (1) to fail or refuse to hire or to discharge any individual, or
                           otherwise to discriminate against any individual with respect to his
                           compensation, terms, conditions, or privileges or employment,
                           because of such individual’s race, color, religion, sex, or national
                           origin . . . .

           Certain Plaintiffs also claimed employment discrimination on the grounds of age, disability,

                                                    3
finding the requisite numerosity, commonality, typicality, and adequacy of

representation, certified under Rule 23(b)(2) of the Federal Rules of Civil

Procedure the following class:5

       All present and future sworn white employees of the Fulton County
       Sheriff’s Department and all past sworn white employees who allege
       discriminatory acts by Defendants within the applicable statute of
       limitations.


       On June 12, 1996, after an extended trial, the jury awarded damages to

fifteen of the eighteen Plaintiffs and the district court entered judgment.6 On July

8, 1996, Plaintiffs moved to amend the judgment, requesting injunctive relief and


retaliation and gender. Before trial, the parties agreed to sever those claims from this lawsuit.


   5
      Rule 23(b)(2) includes those class action suits where “the party opposing the class has acted
or refused to act on grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class as a whole.” This
subdivision was added specifically to Rule 23 to facilitate civil rights class actions. See Kincade v.
General Tire & Rubber Co., 

, 506 n.6 (5th Cir. 1981). The district court concluded that
this subdivision best described Plaintiffs’ putative class.


   6
      The jury did not indicate on which theory of liability it relied in reaching its verdict. However,
because the substantive law and proof requirements of Title VII, section 1981, and section 1983 are
the same for claims alleging intentional employment discrimination based on race by state actors,
this failure to identify the particular basis of liability does not present any insurmountable problems
for appellate review. See, e.g., Standard v. A.B.E.L. Servs., Inc., 

, 1330 (11th Cir.
1998) (explaining that “[b]oth [Title VII and section 1981] have the same requirements of proof and
use the same analytical framework, therefore we shall explicitly address the Title VII claim with the
understanding that the analysis applies to the § 1981 claim as well.”); Cross v. State of Ala., 

, 1507-08 (11th Cir. 1995) (noting that when section 1983 is used as a parallel remedy for
violation of Title VII the elements of the two causes of action are the same).


                                                   4
back pay, and, on July 10, 1996, the district court vacated the judgment.

Thereafter, the district court entered a modified judgment for damages, backpay,

individual equitable relief, and class-based injunctive relief.

       The jury verdict and final judgment included the following for each Plaintiff:

       1. Major A.M. Alexander - The jury found that the Defendants had
       discriminated against Alexander with respect to assignments or
       transfers and that he had been disciplined in whole or in part because
       of his race. The jury awarded Alexander $125,000 in compensatory
       damages against both Fulton County and Sheriff Barrett and $25,000
       in punitive damages against Sheriff Barrett for discriminatory
       assignments or transfers. The jury also awarded Alexander $2,800 in
       back pay, an additional $125,000 in compensatory damages against
       Fulton County and Sheriff Barrett, and $25,000 in punitive damages
       against Sheriff Barrett for his suspension. The district court also
       ordered that the record of disciplinary action against Alexander be
       expunged from his Sheriff’s Department file.

       2. Sergeant Charles “Tony” Alexander - The jury awarded Charles
       Alexander $15,000 in compensatory damages because of Sheriff
       Barrett’s failure to restore Alexander’s rank after his voluntary
       demotion from sergeant to deputy. The district court ordered the
       Defendants to recalculate Alexander’s retirement benefits and other
       employee benefits to reflect any changes that would have occurred
       had his rank been restored.

       3. Sergeant Joseph Bantin - The jury found in favor of Bantin on his
       claims that Sheriff Barrett did not consider him for appointment to the
       unclassified7 positions of captain or major on account of his race, and
       that he was not permitted to compete in the promotional process for


   7
      Unclassified positions are like political appointments; they are appointed by the Sheriff and
can be terminated at will. Classified positions are explicitly subject to civil service-type protections
and comprise the vast majority of jobs in the Sheriff’s Department. See discussion infra section II.

                                                   5
the rank of classified lieutenant, also because of race. Finally, the
jury returned a verdict for the Defendants on Bantin’s claim that he
had not been considered for reclassification because of his race. The
jury awarded Bantin $10,000 in compensatory and $5,000 in punitive
damages based on its finding of discrimination against Bantin in the
promotional process.

4. Sergeant Billy Bolt - The jury found that Bolt was wrongfully not
appointed to the classified position of lieutenant in June 1993 because
of his race and awarded him $20,000 in compensatory damages and
$5,000 in punitive damages. The district court also entered an award
of $1,000.98 in back pay and ordered the Defendants to reclassify
Bolt as a lieutenant providing him with the pay grade, employee
benefits, and seniority he would have achieved had he been appointed
to the rank of classified lieutenant on June 1, 1993.

5. Sergeant Denise Brooks - The jury found that Brooks was not
selected for appointment to the unclassified positions of captain or
major due to her race. The jury concluded that Brooks should have
been appointed as an unclassified captain in June 1993 and awarded
her $10,000 in compensatory damages and $10,000 in punitive
damages. The jury also found that she was discriminated against with
respect to assignments or transfers and awarded her an additional
$25,000 in compensatory damages and $5,000 in punitive damages.
The district court also ordered the Defendants to provide Brooks with
the pay grade, employee benefits, and seniority she would have
achieved had she been appointed to captain on June 1, 1993.

6. Lieutenant Robert Fox - The jury found that Fox was not
appointed to the position of unclassified captain in March 1993 and
was transferred to a position in the Jail against his will in 1994
because of race. The jury awarded Fox $20,000 in compensatory
damages and $10,000 in punitive damages on his failure to promote
claim. It awarded him an additional $50,000 in compensatory
damages and $10,000 in punitive damages on his discriminatory
assignment or transfer claim. The district court ordered the
Defendants to recalculate Fox’s retirement and other benefits as if he


                                   6
had been appointed to an unclassified captain position on March 1,
1993.

7. Captain Gary Gettis - The jury found that Gettis was not appointed
to the unclassified positions of captain or major due to his race. The
jury concluded that in the absence of discrimination, Gettis would
have been appointed to an unclassified captain position in June 1993,
and awarded him $10,000 in compensatory damages and $10,000 in
punitive damages. The district court also awarded Gettis $2,290.59 in
back pay, the amount he would have received had he been appointed
to an unclassified captain position in June 1993, and ordered the
Defendants to recalculate Gettis’ retirement and other employee
benefits as if he had been appointed to an unclassified captain position
on June 1, 1993.

8. Corporal Sara Henderson - The jury found that Henderson was not
considered for appointment to the unclassified positions of captain or
major on account of her race. However, the jury found against
Henderson on her claim that she was denied promotions to the
positions of classified corporal and sergeant in 1993 because of race.
The jury did not award her any damages.

9. Sergeant Kathy Jones - The jury found that Jones was denied
transfers outside the Jail because of race and awarded her $10,000 in
compensatory damages and $5,000 in punitive damages. The district
court declined to award injunctive relief to Jones.

10. Lieutenant Carolyn Masson - The jury found that Masson was not
considered or selected for appointment to the unclassified positions of
captain or major due to her race and that she was also discriminated
against with regard to assignments or transfers because of her race.
As for not selecting her to an unclassified position, the jury concluded
that Masson should have been appointed to an unclassified captain
position in June 1993 and awarded her $10,000 in compensatory
damages and $10,000 in punitive damages. As for its findings
concerning the assignments or transfers, the jury awarded Masson an
additional $50,000 in compensatory damages and $10,000 in punitive
damages. The district court also awarded Masson $5,412.99 in back

                                   7
pay to compensate her for wages she would have received had she
been appointed to the position of unclassified captain in June 1993.
The court also ordered the Defendants to provide Masson with the pay
grade, employee benefits, and seniority she would have earned had
she been appointed to the position of captain on June 1, 1993.

11. Corporal Donnie McBee - Although the jury found for McBee on
his claim that he was not considered for appointment to the
unclassified positions of captain or major because of his race, it found
his failure to be selected for these positions was not on account of his
race. The jury also concluded McBee had not been discriminated
against with respect to assignments or transfers. Accordingly, the jury
did not award McBee any damages.

12. Corporal Guerry “Bubba” Moore - The jury found that Moore
was not considered for appointment to the unclassified positions of
captain or major because of race, but found that his failure to be
selected for appointment to these positions was not on account of race.
The jury did find, however, that Moore had been discriminated against
on the basis of race with regard to assignments or transfers and
awarded him $10,000 in compensatory damages and $5,000 in
punitive damages. The district court entered judgment in these
amounts but declined to enter any individual injunctive relief.

13. Sergeant James NeSmith - The jury found for NeSmith on his
claims that he was discriminated against because of race with regard
to promotions, assignments or transfers, and discipline. The jury
awarded him $10,000 in compensatory damages and $10,000 in
punitive damages on his unclassified position non-selection claim.
The jury also awarded him $40,000 in compensatory damages and
$8,000 in punitive damages on his discriminatory assignment or
transfer claim, and an additional $30,000 in compensatory damages
and $7,000 in punitive damages on his discriminatory discipline
claim. The district court also awarded NeSmith $2,156.83 in back pay
to compensate him for wages he would have received had he been
promoted to the position of unclassified captain in March 1993, and
ordered the Defendants to provide NeSmith with the pay grade,


                                   8
employee benefits, and seniority he would have earned had he been
promoted to the position of unclassified captain on March 1, 1993.

14. Sergeant Joan Paschal - The jury found for Paschal on her claim
that she was not considered for appointment to the unclassified
positions of captain or major due in whole or in part to her race, but it
awarded her no monetary relief, and the district court ordered no
injunctive relief.

15. Sergeant Heidi Schaefer - The jury found that Schaefer was not
considered for appointment to the unclassified positions of captain or
major on account of her race and that she was discriminated against
because of race with respect to assignments or transfers. The jury also
concluded that Schaefer had not been permitted to compete in the
promotional process for the rank of classified lieutenant in 1993
because of her race. Accordingly, the jury awarded Schaefer $10,000
in compensatory damages and $5,000 in punitive damages for the
assignment or transfer claim, and an additional $10,000 in
compensatory damages and $5,000 in punitive damages for the
promotional process claim.

16. Sergeant Robert Smith - The jury found that Smith was not
reclassified as a classified sergeant until July 1994, and was not
permitted to compete in 1993 in the promotional process for the
position of classified lieutenant because of his race. Although the jury
found that Smith was the victim of discrimination when he was not
considered for appointment to the unclassified positions of captain or
major, it concluded that his failure to be selected was not the result of
discrimination. The jury also determined that Smith was not
discriminated against with respect to assignments or transfers. As for
his reclassification claim, the jury found that Smith should have been
reclassified as a classified sergeant in November 1992 and awarded
him $10,000 in compensatory damages and $0 in punitive damages.
As for his promotional process claim, the jury awarded Smith $10,000
in compensatory damages and $5,000 in punitive damages. Finally,
the district court ordered the Defendants to provide Smith with the
pay grade, employee benefits, and seniority he would have achieved


                                    9
       had he been promoted to the rank of classified sergeant on November
       1, 1992.

       17. Sergeant Benjamin Steele - The jury found that while Steele was
       not considered for appointment to the unclassified positions of captain
       or major on account of race, his failure to be selected for these
       positions was not due to his race. The jury did find that Steele was
       discriminated against with respect to assignments or transfers but not
       with respect to reclassifications. Based on finding discrimination on
       Steele’s assignment or transfer claims, the jury awarded Steele
       $10,000 in compensatory damages and $5,000 in punitive damages.

       18. Corporal Robert Upshaw - Finally, the jury found that while
       Upshaw was not considered for appointment to the unclassified
       positions of captain or major because of his race, his failure to be
       selected for these positions was not on account of race. The jury did
       find, however, that Upshaw’s rank of classified lieutenant was not
       restored after his voluntary demotion to deputy because of his race. As
       for this claim, the jury awarded Upshaw $20,000 in compensatory
       damages but no punitive damages. The district court also ordered
       Defendants to promote Upshaw to the rank of classified lieutenant
       retroactive to March 1, 1993, and to adjust his pay grade, employee
       benefits, and seniority accordingly.

       The district court decertified the class after trial observing that because of

the different types of discrimination claims alleged, Plaintiffs did not satisfy the

commonality and typicality prerequisites of a class action. The court also

expressed doubt as to whether the members of the class were really so numerous as

to warrant class certification. In January 1997, the district court denied the

Defendants’ motion for judgment as a matter of law and entered final judgment for

the Plaintiffs.


                                           10
                                         II.

      A brief description of the structure, function, and hierarchy of the Fulton

County Government offices at issue is necessary to understand the resolution of

this appeal. We begin with Defendant Fulton County which is administered by the

Fulton County Board of Commissioners (“Board”), in turn made up of seven

Commissioners elected by the voters of Fulton County to four-year terms. The

Board sets Fulton County governmental policy and approves departmental budget

requests. Fulton County voters elect the Sheriff every four years. On December

14, 1992, defendant Jacquelyn Barrett took office as the Sheriff of Fulton County,

Georgia. As of August 1993, the Fulton County Sheriff’s Department had 629

sworn law enforcement officers. Among those officers, 521, or 83%, were black.

      The Sheriff’s Department, like all other Fulton County departments, uses the

services of the Fulton County Personnel Department. The Personnel Board is

appointed by the Board of Commissioners and is the major decision-making

authority within the Personnel Department. The Personnel Department is

responsible for the County’s human resources system, which designates the

positions of Fulton County employees as being either “classified” or

“unclassified.” Classified jobs comprise the vast majority of the jobs in the




                                         11
Sheriff’s Department and are explicitly subject to civil service-type protections.8

For those jobs, the Personnel Department advertises the positions available, noting

the minimum qualifications required for each, and thereafter processes all

applications. In reviewing them, the Board determines whether an applicant meets

the “published” minimum requirements. If the applicant does not meet the

requirements the Board notifies the applicant of this finding and the applicant is

given thirty days to provide the Board with additional information and contest the

finding. But, if the Personnel Board finds that an applicant meets the minimum

qualifications, the applicant receives notification of the next scheduled promotions

test. The Personnel Board then administers a written test. If an applicant passes

that, he is eligible to take an oral examination given by high-ranking officers in the

Sheriff’s Department. Thereafter, if an applicant passes both the written and oral

tests, his name appears on a list of eligible applicants ranked by examination

scores. When an opening for a classified position arises, the Sheriff promotes an

individual from the list in rank designated order. Each list expires after six months,

and the officers who are not promoted from the list but wish to be considered for

future promotions must go through the entire process again.




   8
       The highest-ranking classified position is captain.

                                                 12
       Unclassified jobs, in contrast, are more like political appointments. In

Sheriff Barrett’s administration, they consist of positions with the rank of captain

or higher. Notably, a department head such as Sheriff Barrett with appointment

authority does not have to advertise for open unclassified positions, is not required

to employ the services of the Personnel Department, and can dismiss an

unclassified employee at her pleasure.

       The Personnel Board hears appeals of classified employees who have

suffered demotions, suspensions, or dismissals when the employee alleges that the

action was taken for personal, political, or religious reasons. The Personnel Board

also considers “reclassification” applications.9 The Grievance Review Committee

hears classified and unclassified employees’ appeals of employment decisions

made by superiors. Its review of classified employees’ grievances, however, is

limited to cases not falling under the jurisdiction of the Personnel Board. This

Committee is comprised of two Fulton County non-supervisory employees, two

members drawn from

the supervisory ranks or management appointed by the Board of Commissioners,

and one person who is not employed by Fulton County and who is selected by the

  9
     Generally, a department head seeks reclassification of a subordinate’s classified rank when she
believes the employee is performing the duties of a higher-ranking position than the one actually
held. An employee may also request that her department head seek reclassification on her behalf,
but Department sponsorship is generally required for successful reclassification.

                                                13
other members. According to Committee procedure, an employee’s chain of

command first reviews and considers a grievance. If the employee cannot establish

a satisfactory resolution through the chain of supervision, the grievance is passed

to the Personnel Department which logs in the grievance. The Personnel

Department then forwards the complaint to the Grievance Review Committee

Chairperson who schedules a hearing. After the Grievance Review Committee

conducts a hearing, the Committee may recommend settlement orders which are

subject to approval by the County Manager. Elected officials such as Sheriff

Barrett are not obligated to accept and implement the recommendations of the

Grievance Review Committee, but, as a practical matter, they usually do.

      Finally, the Fulton County Sheriff’s Department consists of several

Divisions. The Jail Division runs the Fulton County Jail and administers prisoner

transfers. The Jail Division is by far the largest of the Sheriff’s Departments, with

over 500 employees. Next in size is the Court Services Division which provides

security to Fulton County courthouses and individual courtrooms. Other Divisions

include the Service Division, the Office of Professional Standards, and the

Bonding Division. The Service Division, is responsible for the service of warrants

and civil processes. The Office of Professional Standards handles investigations

into alleged wrongdoings by Sheriff’s Department employees and conducts


                                          14
background investigations on new applicants. The Bonding Division manages the

Department’s interaction with bonding companies, as well as the whole bonding

process.

       Upon taking office, Sheriff Barrett created the Community Relations

Division and the Research and Planning Division. The Community Relations

Division performs various crime prevention activities, and serves as a liaison

between the Sheriff and the community. The Research and Planning Division

studies issue that the Sheriff believes will be important and prepares the

Department’s Policy and Procedures Manual.

                                            III.

       On appeal we consider six broad challenges to the proceedings below: first,

that the district court erred in denying qualified immunity to Sheriff Barrett;

second, that it erred in concluding Fulton County is liable under section 1983;

third, that the court should have granted Defendants’ motion to sever Plaintiffs’

individual claims; fourth, that the district court wrongfully admitted into evidence

certain statistical and non-statistical evidence that was both irrelevant and unfairly

prejudicial; fifth, that the court erred in its jury instructions; and finally, that the

trial court erroneously denied Defendants’ motions for judgment as a matter of law




                                            15
because the evidence was plainly insufficient to support any of the individual

Plaintiffs’ claims. We consider each claim in turn.

                                                   A.

        We examine first Sheriff Barrett’s belated argument raised for the first time

in the Defendants’ motion for judgment as a matter of law that she is protected, in

her individual capacity, from civil damages by the doctrine of qualified immunity

because the Plaintiffs failed to demonstrate that her conduct violated their clearly

established statutory or constitutional rights.10

        We review de novo the district court’s denial of qualified immunity.

Belcher v. City of Foley, 

, 1395 (11th Cir. 1994). Under qualified

immunity, “government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 

, 818 (1982). “For the



   10
      Qualified immunity is an affirmative defense which must be pled by the defendant. Gonzalez
v. Lee County Housing Auth., 

, 1294 (11th Cir. 1998). Here, Sheriff Barrett
adequately pled the defense of qualified immunity in the Defendants’ answer to Plaintiffs’
complaint, but notably did not pursue the defense further by either a pretrial motion to dismiss or
for summary judgment, thereby losing the protection from litigation, including discovery and trial,
qualified immunity may afford government actors. See Hill v. DeKalb Regional Youth Detention
Center, 

, 1184 (11th Cir. 1994). Not until Defendants’ motion for judgment as a matter
of law, raised initially at the close of the Plaintiffs’ case, did Sheriff Barrett again raise the defense
of qualified immunity.

                                                   16
law to be clearly established to the point that qualified immunity does not apply,

the law must have earlier been developed in such a concrete and factually defined

context to make it obvious to all reasonable government actors, in the defendant’s

place, that ‘what he is doing’ violates federal law.” Lassiter, v. Alabama A&M

Univ., Bd. of Trustees, 

, 1149 (11th Cir. 1994) (en banc) (quoting

Anderson v. Creighton, 

, 640, 

, 3039, 

(1987)). And “‘[f]or qualified immunity to be surrendered, pre-existing law must

dictate, that is, truly compel (not just suggest or allow or raise a question about),

the conclusion for every like-situated, reasonable government agent that what

defendant is doing violates federal law in the circumstances.’” Jenkins by Hall v.

Talladega City Bd. of Educ., 

, 823 (11th Cir. 1997) (en banc) (quoting

)).

      In analyzing a defense of qualified immunity, we first consider whether

Sheriff Barrett was acting within the scope of her discretionary authority when the

alleged wrongful acts occurred. Evans v. Hightower, 

, 1320 (11th

Cir. 1997). If Sheriff Barrett has met this burden, the Plaintiffs must then

demonstrate that she violated clearly established law based upon objective

standards. 

this record, it is undisputed that the Sheriff was acting within the scope

of her discretionary authority when she made the various employment decisions at

issue. Moreover, there can be no doubt that in December 1992, when Sheriff

Barrett assumed office, it was clearly established that intentional discrimination in

the workplace on account of race violated federal law. See Smith v. Lomax, 

, 407 (11th Cir. 1995); Yeldell v. Cooper Green Hosp., Inc., 

, 1064 (11th Cir. 1992) (citing Washington v. Davis, 

, 239-41, 

, 2047-48, 

(1976)); Busby v. City of Orlando, 

, 775 (11th Cir. 1991) (same); Brown v. City of Ft. Lauderdale, 

, 1478 (11th Cir. 1991) (same).

       Sheriff Barrett, however, relying on Foy v. Holston, 

(11th Cir.

1996), argues that she is entitled to qualified immunity because she had a

“substantial lawful motive” for making each of the employment decisions in

question. In Foy, the parents of children removed or threatened with removal

from a religious community11 sued the responsible state social service employees

under section 1983 claiming that the state employees acted out of hostility toward

the parents’ religious beliefs. The social service employees moved for summary



  11
     The plaintiffs were married couples who belonged to Christ Temple Church and lived in “The
Holyland”-- property owned by the Church.

                                              18
judgment claiming qualified immunity. We held that the defendants were entitled

to qualified immunity because “it was [not] already clearly established when [the

employees] acted that no child custody worker could lawfully act–that is, do what

Defendants did–to protect children in the circumstances of this case if the worker

also acted, in part, out of hostility toward the parent’s religion.” 

Subsequently, we have observed that the holding in Foy “rested primarily on the

existence of an indisputable and adequate lawful motive on the part of the social

service employees such that reasonable officials would disagree as to the legality

of their conduct.” Johnson v. City of Ft. Lauderdale, 

, 1379 (11th

Cir. 1997) (emphasis added).

      In this case, however, the jury squarely found that Sheriff Barrett

intentionally discriminated against many white law enforcement officers on

account of race, and, in so doing, unambiguously rejected her proffered non-

discriminatory reasons for her employment decisions. Foy, therefore, is inapposite.

Based on a painstaking review of this record, we are satisfied that a reasonable jury

could find Sheriff Barrett intentionally made race-based employment decisions in

violation of Plaintiffs’ clearly established rights. As a result, the district court

properly denied the Defendants’ motion for judgment as a matter of law because

of qualified immunity. See Von Stein v. Brescher, 

, 578 (11th Cir.


                                           19
1990) (“[I]f there is substantial evidence opposed to the motions [for judgment as a

matter of law], that is, evidence of such quality and weight that reasonable and fair-

minded men in the exercise of impartial judgment might reach different

conclusions, the motions should be denied, and the case submitted to the jury.’”)

(quoting Boeing Co. v. Shipman, 

, 374-75 (5th Cir. 1969) (en banc)).

                                                B.

       Next, the Defendants argue that the district court erred in denying their

motion for judgment as a matter of law as to Fulton County’s liability under

section 1983. Specifically, they claim that Sheriff Barrett did not have “final

policy-making authority” over personnel decisions and that Fulton County had no

“policy or custom” of employment discrimination, thereby foreclosing County

liability for any of the many challenged employment decisions. Whether the

County may properly be held liable under section 1983 makes no practical

difference to the outcome of the case for three independent reasons. First, to the

extent that Plaintiffs complied with Title VII’s preconditions to suit, the County

may properly be held liable under Title VII for all of the claims Plaintiffs press

under section 1983.12 Second, none of the Plaintiffs’ total damages awards



  12
      As we have noted previously, the jury did not specify on which theory of liability it grounded
its award of damages.

                                                20
exceeded the relevant statutory limitation of $300,000 imposed by Title VII.13

Therefore, we need not consider whether the awards would be permissible under

section 1983. Third, as Plaintiffs conceded before the district court, they may not

be awarded punitive damages against the County.14 See Newport v. Fact Concerts,

Inc., 

, 258-61, 

, 2755-56, 

(1981);

Healy v. Town of Pembroke Park, 

, 991 (11th Cir. 1987). Because

Title VII provides an alternative basis for liability in this case, we need not, and

will not, address the purely academic question of whether the County could also

properly have been found liable under section 1983.



                                                 C.

        Defendants also broadly allege that the district court erred in so far as it

tried each of the Plaintiffs’ claims together. After discovery, Defendants moved to


   13
      42 U.S.C. § 1981a(b)(3)(D) provides that the total amount recoverable for each complaining
party under Title VII for compensatory and punitive damages shall not exceed $300,000, where the
employer has more than 500 employees. Here, the Sheriff’s Department employs greater than 500
employees, and the highest damages award was $300,000 for Major Alexander, $250,000 in
compensatory damages and $50,000 in punitive damages. Compensatory damages do not include
backpay or any other relief authorized under section 706(g) of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-5(g). See 42 U.S.C. § 1981a(b)(2).
  14
     Plaintiffs also cannot recover punitive damages against Sheriff Barrett in her official capacity,
see Colvin v. McDougall, 

, 1319 (11th Cir. 1995), because Plaintiffs’ suit against
Sheriff Barrett in her official capacity is the functional equivalent of suing the County, see Kentucky
v. Graham, 

, 166, 

, 3105, 87 L.Ed.2 114 (1985).

                                                  21
sever Plaintiffs’ individual claims of discrimination contending that the joint trial

of these claims would confuse the jury and unfairly prejudice their defense. The

district court rejected this motion. We review a district court’s joinder of

Plaintiffs’ claims and denial of severance for abuse of discretion. Nor-Tex

Agencies, Inc. v. Jones, 

, 1100 (5th Cir. 1973).15 Although we

recognize that unfair prejudice may result from trying together the claims of

multiple Plaintiffs alleging different types of discrimination, we discern no abuse

of discretion in the district court’s decision to join the Plaintiffs’ claims in this

case.

         Among other things, the Federal Rules of Civil Procedure provide that “[a]ll

persons may join in one action as plaintiffs if they assert any right to relief jointly,

severally, or in the alternative in respect of or arising out of the same transaction,

occurrence, or series of transactions or occurrences and if any question of law or

fact common to all these persons will arise in the action.” Fed. R. Civ. P. 20(a).

See also Grayson v. K Mart Corp., 

, 1097 (11th Cir. 1996). A party

seeking joinder of claimants under Rule 20 must establish two prerequisites: 1) a

right to relief arising out of the same transaction or occurrence, or series of


    15
       The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit
rendered prior to October 1, 1981. Bonner v. City of Prichard, 

, 1209 (11th Cir.
1981).

                                             22
transactions or occurrences, and 2) some question of law or fact common to all

persons seeking to be joined. See Fed. R. Civ. P. 20(a). Plainly, the central

purpose of Rule 20 is to promote trial convenience and expedite the resolution of

disputes, thereby eliminating unnecessary lawsuits. See Mosley v. General

Motors Corp., 

, 1332 (8th Cir. 1974). The Federal Rules, however,

also recognize countervailing considerations to judicial economy. Rule 42(b), for

example, provides for separate trials where the efficiency of a consolidated trial is

outweighed by its potential prejudice to the litigants. See Fed. R. Civ. P. 42(b);

. The Supreme Court has instructed the lower courts to

employ a liberal approach to permissive joinder of claims and parties in the interest

of judicial economy: “Under the Rules, the impulse is towards entertaining the

broadest possible scope of action consistent with fairness to the parties; joinder of

claims, parties and remedies is strongly encouraged.” United Mine Workers v.

Gibbs, 

, 724, 

, 1137, 

(1966).

      In determining what constitutes a transaction or occurrence for the purposes

of Rule 20(a), courts have looked for meaning to Fed. R. Civ. P. 13(a) governing

compulsory counterclaims. See 

. For the purposes of

Rule 13(a), “‘[t]ransaction’ is a word of flexible meaning. It may comprehend a

series of many occurrences, depending not so much upon the immediateness of


                                          23
their connection as upon their logical relationship.” Moore v. New York Cotton

Exchange, 

, 610, 

, 371, 

(1926) (interpreting

the compulsory counterclaim provision of former Equity Rule 30). Accordingly,

“all ‘logically related’ events entitling a person to institute a legal action against

another generally are regarded as comprising a transaction or occurrence.”

. Several courts have concluded that allegations of a

“pattern or practice” of discrimination may describe such logically related events

and satisfy the same transaction requirement. In Mosley, perhaps the leading case

on the joinder of Title VII plaintiffs under Rule 20, see 4 Lex K. Larson,

Employment Discrimination, § 78.05, at 28-29 (2d ed. 1994), ten black plaintiffs

alleged that General Motors had a general policy of discrimination against black

employees. The trial court had ordered the severance of the claims, concluding

that the allegations presented a variety of issues and had little relationship to one

another. 

. The Eighth Circuit reversed the trial court’s

order to sever plaintiffs’ claims, concluding that, based on its reading of Rule 20,

the General Motors policy “purportedly designed to discriminate against blacks in

employment . . . [arose] out of the same series of transactions and occurrences.”

The court held that “[s]ince a ‘state-wide system designed to enforce

the registration laws in a way that would inevitably deprive colored people of the


                                           24
right to vote’ was determined to arise out of the same series of transactions or

occurrences, we conclude that a company-wide policy purportedly designed to

discriminate against blacks in employment . . . arises out of the same series of

transactions or occurrences” 

(quoting United States v. Mississippi,

, 142, 

, 815-16, 

(1965)). See also

Blesedell v. Mobile Oil Co., 

, 1422 (S.D.N.Y. 1989) (“A

company-wide policy purportedly designed to discriminate against females in

employment arises out of the same series of transactions or occurrences.”); King v.

Pepsi Cola Metro. Bottling Co., 

, 6 (E.D. Pa. 1979) (noting that

allegations of a “pervasive policy of discrimination” by the employer bring the

“complaints of individual Plaintiffs under the rubric of the ‘same series of

transactions’”); Vulcan Soc’y v. City of White Plains, 

, 387

(S.D.N.Y. 1979) (stating that transaction requirement met where Plaintiffs and

would-be Plaintiffs claimed discriminatory policies and practices which included a

series of exams allegedly used to discriminate against blacks).

      The second prong of Rule 20 does not require that all questions of law and

fact raised by the dispute be common, but only that some question of law or fact be

common to all parties. See 

. Several courts have found

that the question of the discriminatory character of Defendants’ conduct can satisfy


                                          25
the commonality requirement of Rule 20. See 

(finding

that whether the threat of a racially discriminatory policy hangs over a racial class

is a question of fact common to all the members of the class); Blesedell, 708 F.

Supp. at 1422 (noting that “[i]n employment discrimination cases under Title VII,

courts have found that the discriminatory character of a defendant’s conduct is

common to each plaintiff’s recovery”); cf. 

(suggesting that “a unified policy, plan, or scheme of discrimination” can satisfy

Rule 20's commonality requirement).

      On the other hand, the prejudicial effects of other witnesses’ alleged

discriminatory experiences may outweigh their probative value where, for

example, the alleged discrimination occurs during different time periods, see, e.g.,

Annis v. County of Westchester, 

, 247 (2d Cir. 1998); Williams v.

The Nashville Network, 

, 1130 (6th Cir. 1997), different supervisors

make the challenged decisions, see, e.g., 

; 

; Mooney v. Aramco Servs. Co., 

, 1221 (5th Cir. 1995),

or the alleged discrimination happens at geographically removed places, see, e.g.,

; 

. None of these concerns is

presented here.




                                          26
        In this case, the district court did not abuse its discretion in finding that the

Plaintiffs satisfied both requirements for joinder. As for the first requirement, all

of the Plaintiffs’ claims stem from the same core allegation that they were subject

to a systemic pattern or practice of race-based discrimination against white law

enforcement officers by Sheriff Barrett in her first year in office. Plaintiffs all

seek relief based on the same series of discriminatory transactions by the same

decision-maker in the same department during the same short time frame. As for

the second requirement, the discriminatory character of Defendants’ conduct is

plainly common to each plaintiff’s recovery. The fact that the Plaintiffs suffered

different effects--in this case, discrimination in promotions, transfers, assignments,

or discipline--from the alleged policy of discrimination did not preclude the trial

court from finding a common question of law and fact. See 

; 

.

        Alternatively, the Defendants argue that even if the district court did not

abuse its discretion in finding proper joinder under Rule 20(a), it did err in failing

to sever the Plaintiffs’ cases for trial under Fed. R. Civ. P. 42(b).16 Grayson, 79

   16
       Rule 42(b) provides in full: “The court, in furtherance of convenience or to avoid prejudice,
or when separate trials will be conducive to expedition and economy, may order a separate trial of
any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number
of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the
right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a
statute of the United States.” The trial court likewise has discretion under Rule 20(b) to 

. As Rule 42(b) requires the district court to balance considerations of

convenience, economy, expedition, and prejudice, the decision to order separate

trials naturally depends on the peculiar facts and circumstances of each case.

Again, we disturb a district court’s decision not to order separate trials only upon a

showing of abuse of discretion. See Bailey v. Board of County Comm’rs, 

, 1127-28 (11th Cir. 1992). We can discern no abuse of discretion here.

       Defendants suggest that there was no way to try together the individual

claims of the eighteen Plaintiffs, each involving different work histories,

employment decisions and prayers for relief, without unfairly prejudicing their

defense and confusing the jury. While we acknowledge the real potential for

confusion among jurors and for unfair prejudice to a defendant where there are

large numbers of Plaintiffs, claims, and defenses, and urge care in joining together

in one case multiple claims and multiple claimants, we conclude that in this case

the potential for prejudice was minimized because of the core similarities in

Plaintiffs’ claims. As we have stated, the claims all center on the core allegation of

a systemic pattern of race-based discrimination against white law enforcement

officers instigated by Sheriff Barrett during her first year in office. Moreover, the




separate trials “to prevent delay or prejudice,” but this was not argued by appellants’ in their brief,
and therefore we will not address that rule here.

                                                  28
Plaintiffs’ specific claims also overlap substantially. Each plaintiff, with the

exception of Major A.M. Alexander, challenged on the grounds of race

discrimination Sheriff Barrett’s alleged failure to consider him or her for

appointment to unclassified positions. Thirteen Plaintiffs claimed the Sheriff

discriminated against each of them in assignments or transfers. In addition to

these two main claims, three of the Plaintiffs alleged that they were discriminated

against with respect to reclassifications, two claimed that they were discriminated

against when Sheriff Barrett failed to restore their rank after voluntary demotions,

and two claimed they were disciplined in a discriminatory manner. Furthermore,

several of the claims --discriminatory denial of reclassification, discriminatory

denial of restoration of rank, and denial of promotion claims--logically relate or

overlap. Finally, each of the Plaintiffs’ claims and the evidence of discrimination

undoubtedly are relevant to every other plaintiff’s core allegation of systemic

discrimination. See Cooper v. Federal Reserve Bank of Richmond, 

,

876, 

, 2799, 

(1984) (explaining that evidence of

pervasive discrimination against others is admissible if such evidence is similar to

the complainant’s experience and tends to establish that “racial discrimination was

the company’s standard operating procedure–the regular rather than the unusual

practice”) (quoting International Bd. of Teamsters v. United States, 

,


                                          29
336, 

, 1855, 

(1977)); 

(holding that “to show relevancy, Trial Plaintiffs had to show that the proffered

anecdotal witnesses were sufficiently similar to themselves so that the witnesses’

testimony would have a tendency to show ‘standard [discriminatory] operating

procedure’ and a ‘regular rather than unusual practice’ of discrimination.”)

(quoting 

, 97 S. Ct. at 1855).

        Given the common core of allegations, the substantial overlap of the

particular claims, and the logical interconnection of several of the different forms

the alleged discrimination took, we are satisfied that the district court did not abuse

its discretion in finding that the efficiency of a consolidated trial outweighed the

potential for unfair prejudice or jury confusion.

        While the Defendants also claim that the verdict itself reflects that the joint

trial of the eighteen Plaintiffs hopelessly confused the jury, requiring remand and

severance, we cannot agree. The verdict actually delivered by the jury, when

considered in its entirety, suggests to the contrary that the jury discerned the

strengths and weaknesses of the claims of each individual plaintiff. Indeed, the

jury denied relief on all claims concerning promotion to unclassified major.17 The


   17
      While the jury found that all Plaintiffs, except for Major Alexander, were not considered for
promotion to the unclassified position of major because of race, it rejected all of their claims that
they were not actually selected for the position because of race.

                                                 30
jury also found against two of the four Plaintiffs who claimed that they should

have been reclassified,18 and against five of the ten Plaintiffs who alleged that they

were not selected to unclassified captain positions due in part or in whole to their

race.19 See United States v. Bermea, 

, 1574 (5th Cir. 1994) (stating

that “[t]he mixed verdicts returned with respect to [the two of the Defendants]

demonstrate that the jury was not confused”); United States v. LaSpesa, 

, 1032 (11th Cir. 1992) (finding no error in the district court’s denial of

motion for severance because, among other reasons, “the jury’s mixed verdict

showed, at least to some degree, that it effectively linked the evidence to the

appellants and ‘refuted any allegation of compelling prejudice’”) (quoting United

States v. Hernandez, 

, 1578 (11th Cir. 1991); United States v.

Perlstein, 

, 281 (3d Cir. 1941) (finding that the jury was not confused

by two conspiracies being tried together because they acquitted one defendant and

convicted the other). On this record, we cannot say that the district court abused its

discretion in not severing Plaintiffs’ individual claims.

                                             D.

   18
      The jury found in favor of Jimmy Bolt and Robert Smith, and against Joseph Bantin, and
Benjamin Steele.
   19
        The jury found in favor of Denise Brooks, Robert Fox, Gary Gettis, Carolyn Masson, and
James NeSmith. The jury found against Charles Alexander, Joseph Bantin, Jimmy Bolt, Benjamin
Steele, and Robert Upshaw.

                                             31
      Next, the Defendants challenge the district court’s evidentiary rulings

concerning the admissibility of statistical evidence designed to show that white

officers were underrepresented in the Sheriff’s department, and non-statistical

evidence offered to show a custom or practice of discrimination against white

employees by Fulton County. Again, we review the district court’s evidentiary

rulings for abuse of discretion, see Judd v. Rodman, 

, 1341 (11th

Cir. 1997), and reverse only if the moving party establishes that the ruling resulted

in a “substantial prejudicial effect,” Piamba Cortes v. American Airlines, Inc., 

, 1305 (11th Cir. 1999) (citation and internal quotation marks omitted);

see also Fed. R. Evid. 103(a) (“Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party is affected . . .

.”); Fed. R. Civ. P. 61 (An erroneous evidentiary ruling is not subject to reversal

unless refusal to take such action is “inconsistent with substantial justice.”). When

employing an abuse of discretion standard, “we must affirm unless we at least

determine that the district court has made a clear error of judgment, or has applied

an incorrect legal standard.” SunAmerica Corp. v. Sun Life Assurance Co. of

Canada, 

, 1333 (11th Cir.1996) (citations and internal quotation

marks omitted). While we think the district court erred in admitting both types of




                                           32
evidence, we are satisfied that the error did not result in a substantial injustice to

the Defendants.

      First, the Defendants challenge the district court’s decision to admit five

pieces of statistical evidence: (1) testimony concerning and comparing the racial

composition of the Sheriff’s Department to the general demographics of an eight-

county Metropolitan Atlanta area; (2) evidence regarding changes in the overall

racial composition of the Sheriff’s Department and the workforce in Fulton County

over two decades; (3) evidence establishing the change in the racial composition of

the general workforce of Fulton County government from the mid-1970's to the

present; (4) testimony regarding the increase in the number of minority employees

in Fulton County government from 1985 to 1995 and the concomitant decrease in

the number of white employees; and finally, (5) evidence that the overall

composition of the County workforce had increased from 22.1% minority in 1972

to 55.9% in 1989, that the percentage of black County Department Heads had

increased from zero in 1972 to 40 to 50% in 1990, and that the number of black

members of the Board of Commissioners had increased from zero of three to five

of seven between 1972 and 1990.

      We begin by considering the relevance of the first two pieces of evidence

generally comparing the racial composition of the Sheriff’s Department to the


                                           33
demographics of Fulton County and the eight-county metropolitan Atlanta area to

show discrimination by the Sheriff’s Department. On occasion, we have regarded

as probative of class-based disparate treatment statistics showing that a given

minority is “underrepresented” in the work force by comparison with the general

population. See, e.g., United States v. City of Miami, 

, 1339 (5th

Cir. 1980) (comparing numbers of Spanish-surnamed City employees with

Spanish-surnamed members of the Miami labor force), reh’g granted on other

grounds, 

(5th Cir. 1981). The usefulness of such statistical

comparisons, however, is generally limited to claims involving jobs with low skill

levels where the applicant pool can be considered roughly coextensive with the

general population. See, e.g., City of Richmond v. J.A. Croson Co., 

,

501, 

, 726, 

(1989) (explaining that “[i]n the

employment context, we have recognized that for certain entry level positions or

positions requiring minimal training, statistical comparisons of the racial

composition of an employer’s work force to the racial composition of the relevant

population may be probative of a pattern of discrimination. But where special

qualifications are necessary, the relevant statistical pool for purposes of

demonstrating discriminatory exclusion must be the number of minorities qualified

to undertake the particular task”) (citations omitted) (emphasis added); Hazelwood


                                          34
Sch. Dist. v. United States, 

, 308 n.13, 

, 2742 n.13, 

(1977) (noting that ‘[w]hen special qualifications are required to fill

particular jobs, comparisons to the general population (rather than to the smaller

group of individuals who possess the necessary qualifications) may have little

probative value”); International Bd. of 

n. 17

(considering as evidence of intentional discrimination statistics comparing the

percentage of black residents in various cities with the percentage of blacks hired

as line drivers in those cities). See also Peightal v. Metropolitan Dade County, 

, 1553 (11th Cir. 1994) (noting that “in order to determine discriminatory

exclusion, unskilled positions are compared to a different statistical pool than are

jobs requiring special skills”). In a disparate treatment case where low skill jobs

are not at issue, “the statistical evidence must be finely tuned to compare the

employer’s relevant workforce with the qualified populations in the relevant labor

market.” Forehand v. Florida State Hosp. at Chattahoochee, 

, 1575

(11th Cir. 1996) (disparate treatment class action) (citation and internal quotation

marks omitted).

      In this case, the Plaintiffs consist of current or former sworn law

enforcement officers in the Fulton County Sheriff’s Department. Plainly, these

jobs are not entry level and are not of a “low skill level” within the meaning of


                                          35
Teamsters and Hazelwood. The relevant labor pools undoubtedly are narrower

than Plaintiffs’ vague comparison to general population figures would suggest, and

the comparisons must be more subtle and nuanced. Indeed, for the unclassified

captain and major positions, Sheriff Barrett appointed officers with the rank of

classified sergeant or higher (in addition to some outside hires). The relevant labor

market for these positions, therefore, consisted of all law enforcement officers with

at least the rank of sergeant. For reclassifications, the relevant population was

comprised of all law enforcement officers eligible for reclassification. For

transfers and assignments, the relevant market consisted of all law enforcement

officers eligible for the transfer or assignment in question. And for disciplinary

actions, the relevant pool was made up of law enforcement officers who had

committed the same or similar offenses as the officer who was subject to

discipline. Because the general population is not readily qualified for the law

enforcement positions at issue in the case, the Plaintiffs cannot show

discrimination in hiring simply by comparing the percentage of white sworn

officers in the Fulton County Sheriff’s Department with the percentage of white

residents of Fulton County or metropolitan Atlanta. To show discrimination in

hiring for these law enforcement positions, the Plaintiffs would instead have to

show a disparity between the percentage of whites hired as law enforcement


                                          36
officers and the percentage of whites in the relevant labor pool of qualified

individuals. Because Plaintiffs’ statistical evidence attempts to show

discrimination just by looking at the general population rather than at the relevant

skilled labor pool, the evidence has no real probative value of whether, within the

relevant labor pool, the Sheriff’s Department discriminated on the basis of race.

As a result, we think the first two pieces of statistical evidence should have been

excluded by the trial court.

      The remaining three pieces of statistical evidence showing the increase in

the number of minority employees of Fulton County government also are not

relevant to the allegations that the Sheriff discriminated in this case. The evidence

was offered to suggest the Sheriff’s Department was somehow influenced and

encouraged by a larger County-wide policy of discriminating against whites. But

this evidence is not probative of a custom or policy in the Sheriff’s department for

two reasons. First, the statistical evidence reflecting the rising number of minority

employees in the County workforce does not alone tend to establish that Fulton

County officials initiated and maintained a custom of discrimination against their

white employees. It does not ineluctably follow that a rise in the number or

percentage of minority employees in the County was caused by a custom or policy

of discrimination maintained by County officials. Second, even if a policy or


                                          37
custom of discrimination by the County was somehow demonstrated or even

suggested by the rising number of minorities in the County workforce, this

evidence standing alone has no bearing on whether such a policy or custom of

discrimination was also maintained by the Sheriff’s Department. Notably, the

Plaintiffs have not shown that the County participated in any way in the

employment decisions made by the Sheriff and therefore cannot establish any

connection between the hiring decisions and policies of the County and those of

the Sheriff’s Department. As a result, evidence of the racial composition of Fulton

County government employees, even if it suggests a policy of racial discrimination

by the County, does not make a similar pattern or policy of racial discrimination

by the Sheriff’s Department against its employees any more or less likely.

      Although we believe that the district court erroneously admitted the

challenged statistical evidence, we are satisfied, after a thorough review of the

record, that the error does not warrant reversal for two reasons. First, the district

court adequately instructed the jury on the proper weight to be given to the

evidence thereby ameliorating any prejudicial effect the evidence might otherwise

have had. In instructing the jury on how to evaluate the statistical evidence, the

district court stated: “[I]f you find that the Plaintiffs demonstrate a racial disparity,

you may consider whether factors other than race account for the disparity and you


                                           38
may consider whether such disparity, if any, caused the specific personnel

decisions about which they complain.”

      The district court’s instruction to consider whether factors other than race

account for any statistical disparity, largely cures any error caused by admitting the

first two pieces of evidence comparing the racial composition of the Sheriff’s

Department with the non-relevant general populations of Fulton County and the

Metropolitan Atlanta area. The instruction properly focused the jury on the

question of whether the statistical disparities were the result of race-based

discrimination in the Sheriff’s Department or the result of a racially skewed

qualified labor pool. By focusing the jury on this critical question of whether the

statistical disparities showed that similarly situated black and white individuals

were treated differently by the Sheriff’s Department--a question in no way

answered by the statistical evidence--- the district court ensured that the jury did

not accord the statistical evidence weight it was not due.

      Moreover, as for the remaining statistical evidence examining the racial

composition of the Fulton County government workforce, we are satisfied that the

district court’s instruction to the jury to consider whether the racial disparity

reflected in the statistics caused the specific personnel decisions challenged in this

case cured any potential injustice caused by the district court’s erroneous


                                           39
admission of this evidence. Again, the district court’s instruction emphasized the

need for the jury to find a causal link between the statistical disparities and the

decisions made by Sheriff Barrett. No such causal link between the County and

the Sheriff was presented. The district court’s instruction, by focusing the jury on

the need to find such a link before giving the statistical evidence weight, again

ensured that the jurors would not give the evidence weight it did not deserve.

        Simply put, the district court “sufficiently instructed the jury so that the

jurors understood the issues and were not misled” by the statistical evidence

erroneously admitted. Carter v. DecisionOne Corp., 

, 1005 (11th

Cir. 1997) (citation omitted). See also Nettles v. Electrolux Motor AB, 

, 1581 (11th Cir. 1986) (holding that although the district court erroneously

admitted certain evidence, the error was not grounds for reversal because the

district court correctly focused the jury’s attention on the relevant issue making it

“highly unlikely” that the jury gave the evidence undue consideration).

        Second, although we do find the admissible evidence presented at trial was

insufficient to sustain several of the jury’s verdicts,20 the verdicts that we do sustain

were the product of such one-sided evidence that we find it very unlikely, indeed

remote, that the jury could have been swayed erroneously by the wrongfully


   20
        See infra section IV.

                                            40
admitted evidence. See United States v. Mendez, 

, 486 (11th Cir.

1997) (finding harmless the district court’s erroneous introduction of evidence

because of the ample evidence supporting the jury’s verdict); Lubbock Feed Lots,

Inc. v. Iowa Beef Processors, Inc., 

, 271 (5th Cir. 1980) (upholding a

jury verdict despite the district court’s erroneous admission of evidence because

“[i]n light of our determination that the evidence was sufficient to support the

jury’s finding of an agency relationship even without the challenged testimony, in

view of the minor importance of the inadmissible matter, and in light of the district

court’s general instructions to the jury, we conclude that the inadmissible matter

had no prejudicial impact upon the final outcome of this case”). In six of the nine

verdicts that we uphold, Defendants offered no legitimate non-discriminatory

reason for their disparate treatment of each plaintiff when compared to the

identified similarly situated black comparator.21 As for the remaining three

verdicts, Defendants presented either patently illogical rationales for their disparate

treatment of each plaintiff,22 or the evidence presented by the Plaintiffs was clearly



   21
       This was the case with the discriminatory discipline claim of James NeSmith, the failure to
promote claims of Robert Fox, Gary Gettis, Carolyn Masson, and James NeSmith, and the
discriminatory reclassification claim of Robert Smith. See discussion infra sections IV-A2, IV-B2-5,
and IV-D.
  22
      This was the case with the discriminatory reclassification claim of Jimmy Bolt. See discussion
infra section IV-D.

                                                41
sufficient to support the jury’s conclusion that the non-discriminatory rationale

given by Defendants was pretextual.23

         While we are honestly troubled by the district court’s erroneous admission

of irrelevant statistical evidence, we conclude that in light of both the curative

effect of the given jury instructions and the one-sidedness of the evidence

presented on those claims whose verdicts we uphold, Defendants did not suffer

substantial injustice as a result of the court’s evidentiary ruling. Accordingly, we

decline to reverse on these grounds.

         The Defendants also challenge the district court’s rulings on the

admissibility of non-statistical evidence offered to establish “custom” under

section 1983. Specifically, Defendants challenge the district court’s admission of

testimony from Sam Brownlee, former County Manager of Fulton County from

1972-1990, and Alice Smith, former Clerk to the Board of Commissioners who left

her position before Sheriff Barrett was elected. Brownlee testified as to four

principal points. First, between 1978 and 1989 the Board of Commissioners

engaged in public and private discussions about making a deliberate effort to

increase minority hiring. Second, the dialogue regarding affirmative action



    23
        This was the case with the discriminatory discipline claim of A.M. Alexander and the
discriminatory transfer clam of Kathy Jones. See discussion infra sections IV-A1 and V-C1.

                                            42
increased in the 1980's when five of the seven members of the Board of

Commissioners were black. Third, during Brownlee’s time as County Manager,

several commissioners told him they believed there were too few blacks at

department head level jobs and that he should recommend only the appointment of

minorities to these positions until the situation was improved. Finally, in the mid-

to-late 1980's outside groups supposedly pressured the County Commission and

others within Fulton County government to fill all appointments of any

consequence with blacks. Alice Smith testified that Michael Hightower, a black

Commissioner, told her she had to be replaced as Clerk with a black individual.

      Defendants correctly argue that the admitted testimony is not sufficiently

connected in time or subject-matter to the challenged personnel decisions to be

admissible. Brownlee’s testimony is completely unrelated to Sheriff Barrett’s

actions. His testimony stemmed back twenty years before Sheriff Barrett was even

elected. Second, the composition of the Board changed between Brownlee’s tenure

with the Board and Sheriff Barrett’s election. Third, there is no evidence that the

County did anything to suggest that Sheriff Barrett engage in discrimination, let

alone that it influenced or coerced her to do so. Smith’s testimony is similarly

irrelevant to the question of whether Sheriff Barrett discriminated against

Plaintiffs. Smith’s testimony did not pertain to actions by any Sheriff’s


                                         43
Department employee. Moreover, the testimony related to a time period nine years

prior to Sheriff Barrett’s election.

      Although the non-statistical evidence at issue was improperly admitted by

the district court, we again conclude its admission did not result in a substantial

injustice to Defendants. First, because the anecdotal evidence admitted was so

completely unconnected to the question of Sheriff Barrett’s discriminatory

employment policies, and so unrelated in time to the conduct here at issue, it is

highly unlikely the jury would have given this evidence any weight. Second, the

district court’s jury instructions suggested that this evidence was of no real

moment by emphasizing that in order to find Defendants liable they had to find that

Sheriff Barrett, not some past and unrelated Board member, engaged in

discriminatory employment practices. The court instructed the jury: “The

Plaintiffs must show that Sheriff Barrett either encouraged the specific incidents

complained of by the Plaintiffs or in some way directly participated in them. At a

minimum, the Plaintiffs must prove that Sheriff Barrett at least officially

authorized, approved or knowingly acquiesced in the alleged discriminatory

conduct.” And third, as we have already said, the evidence offered in support of

the verdicts we uphold was so one-sided that there is no danger the jury was

unduly swayed in reaching these verdicts by the erroneously admitted evidence. In


                                          44
short, we decline the Defendants’ invitation to reverse the district court’s ruling on

this point.24 Indeed, with regard to all of the erroneously admitted evidence, the

jury’s carefully considered mixed verdicts reflect that it was not unduly swayed by

the irrelevant evidence. See 

; United States v. Nixon,

, 906 (11th Cir. 1990).

                                                 E.

       Defendants also challenge on appeal three of the district court’s jury

instructions: first, an instruction concerning the relationship between Plaintiffs’

claims and the scope of their EEOC charge; second, a charge as to what constitutes

a “similarly situated” person for a discriminatory discipline allegation; and finally,

the charge regarding when a local government can be held responsible for the acts




  24
      Defendants also challenge the admission of Fulton County’s 1978, 1989, and 1990 affirmative
action plans. They claim there was no evidence that Sheriff Barrett saw any of the plans at the times
she made the determinations at issue in this case, and, thus, these plans could have no relevance to
this action. With respect to the 1978 and 1989 plans, there is clearly no temporal relevance, and the
district court abused its discretion in admitting them. Indeed, both plans were no longer in effect
when Sheriff Barrett took office. As for the 1990 plan, Plaintiffs failed to demonstrate that Sheriff
Barrett took the plan into account when she engaged in any of the challenged actions. However, for
the reasons we have previously stated, we can discern no prejudicial effect stemming from the
admission of these plans.

                                                 45
or statements of its employees.25 We can find no reversible error in the challenged

jury instructions.

       Our review of a trial court’s jury instructions is limited. See Eskra v.

Provident Life & Accident Ins. Co., 

, 1415 (11th Cir. 1997). If the

instructions accurately reflect the law, the trial judge is given wide discretion as to

the style and wording employed. See 

we examine “whether the

jury charges, considered as a whole, sufficiently instructed the jury so that the

jurors understood the issues and were not misled.” 

(citation omitted). When measured against this standard, if the jury charge as a

whole correctly instructs the jury, even if it is technically imperfect, no reversible




  25
      Defendants also contest the district court’s charge that, under Georgia law, Sheriff Barrett had
the final decision-making authority in employment matters in the Sheriff’s Department, and the
instruction on statistical evidence. These challenges are addressed in separate discussions devoted
to section 1983 liability and admission of statistical evidence. See 

sections III-B
and III-D.

                                                 46
error has been committed. Bateman v. Mnemonics, Inc., 

, 1543 (11th

Cir. 1996). In short, we will reverse because of an erroneous instruction only if we

are “‘left with a substantial and ineradicable doubt as to whether the jury was

properly guided in its deliberations.’” 

(quoting Johnson

v. Bryant, 

, 1280 (11th Cir. 1982)).

      First, the Defendants challenge the district court’s charge concerning the

relationship between the Plaintiffs’ Title VII claims and the scope of their EEOC

charges. The district court instructed the jury in these terms:

             Plaintiff is required to file charges of discrimination with
             the Equal Employment Opportunity Commission or the
             EEOC and to receive from the EEOC a notice of the right
             to sue. An EEOC charge is sufficient when it identifies
             the parties and describes generally the complained of act
             or practice. While you may review the EEOC charges as
             evidence of Plaintiffs’ contentions at the time they were
             filed, the claims asserted in this case may encompass
             discrimination claims that are like the discrimination
             described in the EEOC charges, as well as claims that
             may reasonably be expected to grow out of the
             allegations in the EEOC charge during a reasonable
             investigation by the EEOC.

      We can find no error in this charge, and conclude that it adequately stated

the correct law.

      The starting point of ascertaining the permissible scope of a judicial

complaint alleging employment discrimination is the administrative charge and


                                          47
investigation. See Griffin v. Carlin, 

, 1522 (11th Cir. 1985). No

action alleging a violation of Title VII may be brought unless the alleged

discrimination has been made the subject of a timely-filed EEOC charge. See

generally 42 U.S.C. § 2000e-5. EEOC regulations provide that charges should

contain, among other things, “[a] clear and concise statement of the facts, including

pertinent dates, constituting the alleged unlawful employment practices.” 29

C.F.R. § 1601.12(a)(3). A “plaintiff's judicial complaint is limited by the scope of

the EEOC investigation which can reasonably be expected to grow out of the

charge of discrimination.” Mulhall v. Advance Security, Inc., 

, 589 n.8

(11th Cir. 1994) (citing Sanchez v. Standard Brands, Inc., 

(5th

Cir.1970)). Defendants contend that many of Plaintiffs’ Title VII claims were not

related to the allegations of discrimination raised in their EEOC charges. We are

not persuaded.

      We observe at the outset that in class actions brought under Title VII, which

this case was before it was decertified after the jury had returned its verdict, it is

not necessary for all class members to have filed EEOC charges or to have

received notices of the right to sue in order to be represented by the class. See

Griffin v. Dugger, 

, 1492 (11th Cir. 1987) (citing Oatis v. Crown

Zellerbach Corp., 

, 498-99 (5th Cir. 1968)). As long as one named


                                           48
plaintiff timely files an EEOC charge, “the precondition to a Title VII action is met

for all other named Plaintiffs and class members,” 

398 F.2d at

498-99), and under the so-called “single-filing rule,” if one plaintiff, in a multi-

plaintiff, non-class action suit, “‘has filed a timely EEOC complaint as to that

plaintiff’s individual claim, then co-plaintiffs with individual claims arising out of

similar discriminatory treatment in the same time frame need not have satisfied the

filing requirement.’” 

n. 8 (quoting Jackson v. Seaboard

Coast Line R.R., 

, 1011 (11th Cir. 1982)).

      In this case, every plaintiff alleged in his or her EEOC charge that he or she

was the victim of a pattern or practice of discrimination against white employees in

the Sheriff’s Department. The allegations ultimately leveled in the complaint filed

in the district court are either addressed in the collective EEOC charges or could be

reasonably expected to grow out of those administrative charges of discrimination.

Major Alexander’s EEOC charge of discrimination, for example, contains the

central claim that there was a general pattern or practice of race discrimination

against white employees of the Sheriff’s Department in hiring, promotions, job

assignments, and discipline. The other EEOC charges are not as specific as Major

Alexander’s; they are limited to allegations of discrimination in promotions to

classified and unclassified positions. It is true that several claims of racial


                                           49
discrimination asserted in Plaintiffs’ complaint--denial of access to promotional

exams, reclassifications, and transfers--were not specifically mentioned in the

EEOC charges. However, these claims are sufficiently similar to the promotions

and job assignment claims--all involve the allegedly race-based rejection of

Plaintiffs for desired positions within the Sheriff’s Department--to be fairly

characterized as arising out of similar discriminatory treatment to that specifically

alleged before the EEOC. Cf. Griffin v. Dugger, 

, 1493 (11th Cir.

1987) (holding as dissimilar for the purposes of the single-filing rule non-filing

plaintiff’s objective testing claim and plaintiff’s subjective promotion and

discipline claims); Hill v. A T & T Technologies, Inc., 

, 181 (4th Cir.

1984) (holding as dissimilar EEOC charges alleging discrimination in the

conditions of employment and plaintiff’s allegations of discrimination in hiring).

Accordingly, we reject the Defendants’ suggestion that Plaintiffs’ Title VII claims

did not fall within the ambit of their EEOC charges.

      Second, Defendants contend that the district court erred in charging the jury

that it could find discrimination where “another similarly situated employee, who

is not a member of the protected group, was not treated in a similar manner.”

Defendants claim that the term “similarly situated” is ambiguous, and that this

charge miscasts the governing law of this circuit, which they claim requires the


                                          50
“same or nearly identical conduct.” Again, we disagree. Although susceptible to

manipulation, the phrase “similarly situated” is the correct term of art in

employment discrimination law. See Olmstead v. Zimring, 

, 119 S.

Ct. 2176, 2193 (1999) (Kennedy, J., concurring in the judgment) (characterizing

the “normal definition of discrimination” as “differential treatment of similarly

situated groups” (emphasis added)); Texas Dep’t of Community Affairs v.

Burdine, 

, 258, 

, 1096 (1981) (“McDonnell Douglas

teaches that it is the plaintiff's task to demonstrate that similarly situated employees

were not treated equally.” (emphasis added)); Osram Sylvania, Inc. v. Teamsters

Local Union 528, 

, 1265 (11th Cir. 1996) (“Disparate treatment exists

when similarly situated workers are treated differently even though they have

committed similar acts.” (emphasis added)); Jones v. Gerwens, 

,

1540 (11th Cir. 1989) (holding that in order to show discriminatory discipline,

plaintiff must show either that he did not violate the work rule or “that he engaged

in misconduct similar to that of a person outside the protected class, and that the

disciplinary measures enforced against him were more severe than those enforced

against other persons who engaged in similar misconduct” (emphasis added)).

Moreover, the law does not require that a “similarly situated” individual be one

who has “engaged in the same or nearly identical conduct” as the disciplined


                                          51
plaintiff. Instead, the law only requires “similar” misconduct from the similarly

situated comparator. See, e.g., 

; 

& n.12.

      Third, the Defendants argue that the district court erred when it charged the

jury that “a local government is responsible under [Title VII] for any of the acts

and statements of its employees which are made within the scope of their duties as

employees of the government.” The Defendants suggest that the jury could have

concluded that Fulton County was liable for any “stray remarks” made that were

unrelated to the employment decisions. This argument is unpersuasive for three

reasons: first, the Defendants failed to identify any “stray remarks” introduced into

the record that may have been misinterpreted by the jury; second, in the beginning

of the district judge’s instruction on Title VII, he specifically discussed the

statute’s coverage, which limits Fulton County’s liability to intentional acts of

discrimination by its employees affecting the Plaintiffs’ terms and conditions of

employment; and third, the gist of the district court’s instruction, even when

selectively quoted by Defendants, is correct. See, e.g., Restatement (Second) of

Agency § 219(1) (1958); see also Faragher v. City of Boca Raton, 

,

793 , 

, 2286, 

(1998) (noting that, under agency

principles, “‘a master is subject to liability for the torts of his servants committed


                                           52
while acting in the scope of their employment’”) (quoting Restatement (Second) of

Agency § 219(1) (1958)); Burlington Indus., Inc. v. Ellerth, 

, 754, 

, 

(1988) (explaining that “Congress has directed

federal courts to interpret Title VII based on agency principles”); Sparks v. Pilot

Freight Carriers, Inc., 

, 1558 n. 4 (11th Cir. 1987) (explaining that

“[b]ecause the acts of an employer’s ‘agents’ are those of the employer, an

employer is directly, rather than indirectly, liable for its ‘agents’ Title VII

violations”); Williams v. City of Montgomery, 

, 589 (11th Cir. 1984)

(observing that “[w]here the employer has delegated control of some of the

employer’s traditional rights, such as hiring or firing, to a third party, the third

party has been found to be an ‘employer’ by virtue of the agency relationship”

(citation and quotation marks omitted)).

                                           IV.

      Finally, the Defendants broadly challenge the sufficiency of the evidence

presented to support the verdicts and damages entered against them. We review de

novo the district court’s denial of Defendants’ motion for judgment as a matter of

law, applying the same standards used by the district court. See Combs v.

Plantation Patters, 

, 1526 (11th Cir. 1997). In conducting our

review, we consider all of the evidence and draw all reasonable inferences in a


                                           53
light most favorable to the non-moving party. See Beckwith v. City of Daytona

Beach Shores, 

, 1560 (11th Cir. 1995). Ultimately, we must decide

"whether the evidence is such that, without weighing the credibility of the

witnesses or otherwise considering the weight of the evidence, there can be but one

conclusion as to the verdict that reasonable men could have reached." Rabun v.

Kimberly- Clark Corp., 

, 1057 (11th Cir.1982). Put differently,

judgment as a matter of law is proper only when the “facts and inferences point so

overwhelmingly in favor of the movant . . . that reasonable people could not arrive

at a contrary verdict.” Richardson v. Leeds Police Dep’t, 

, 805 (11th

Cir. 1995) (citations and internal quotation marks omitted).

      At various times in their briefs, the Defendants suggest that some of the

Plaintiffs failed to establish a “prima facie” case of discrimination. We need not

revisit this question however. “When the trier of fact has before it all the evidence

needed to decide the ultimate issue of whether the defendant intentionally

discriminated against the plaintiff, the question of whether the plaintiff properly

made out a prima facie case 'is no longer relevant.'" 

(quoting United States Postal Serv. Bd. of Governors v. Aikens, 

, 715,

, 1481, 

(1983)). Here the Defendants failed to

persuade the district court to dismiss Plaintiffs’ claims for lack of a prima facie


                                          54
case. The Defendants responded to Plaintiffs’ proof by proffering non-

discriminatory reasons for some of Sheriff Barrett’s actions. At that point, “the

factfinder was then required to ‘decide whether the rejection was discriminatory

within the meaning of Title VII,’” 

n.11(quoting 

, 103 S.Ct. at 1481)), and the question of whether a Plaintiff had

made out a prima facie case was no longer before the district court. Thus, on

appeal, we have no occasion to revisit whether Plaintiffs established their prima

facie cases. We do consider, however, all of the evidence submitted by the

Plaintiffs as we determine whether a reasonable jury could disbelieve Defendants’

proffered non-discriminatory reasons for the challenged employment decisions.

See 

must examine whether the evidence presented on behalf of

each plaintiff was sufficient to sustain each of the jury’s verdicts. We note,

however, that eighteen Plaintiffs brought this case alleging a broad based pattern

and practice of discrimination, and the great bulk of the evidence presented was

admissible as to each of the other Plaintiffs’ individual cases precisely because it

points to such a pattern and practice. Consequently, although we analyze each

aspect of the verdict separately and individually, we emphasize that the sum of the

evidence presented additionally supports each of the individual verdicts of


                                          55
discrimination. Thus, although a determination that a defendant may have engaged

in a pattern and practice of discrimination is, standing alone, insufficient to support

a claim of race discrimination in an individual case, if, as the jury plainly

concluded, Sheriff Barrett racially discriminated against each of the eighteen

Plaintiffs in various ways, this conclusion undoubtedly makes it more likely, in any

given case, that Sheriff Barrett discriminated against a particular plaintiff.

      After painstaking review of all the evidence presented we conclude: first,

that there was sufficient evidence to sustain the discriminatory discipline claims of

A.M. Alexander and James NeSmith; second, that there was sufficient evidence to

sustain the verdicts in favor of Robert Fox, Gary Gettis, Carolyn Masson, and

James NeSmith on their discriminatory failure to promote claims, but there was not

enough evidence to sustain the verdict in favor of Denise Brooks as to this charge;

third, that there was sufficient evidence to support the jury verdict on the

discriminatory transfer or assignment claim of Kathy Jones, but insufficient

evidence to sustain the verdicts on the claims of Guerry Moore, Heidi Schaefer,

Benjamin Steele, Denise Brooks, Robert Fox, and Carolyn Masson; fourth, that

there was sufficient evidence presented to sustain the verdicts reached on the

discriminatory reclassification claims of Jimmy Bolt and Robert Smith; fifth, that

the evidence was insufficient on the discrimination in access to promotional


                                           56
examinations claims of Joseph Bantin, Robert Smith, and Heidi Schaefer; and

finally, that the evidence was insufficient to sustain the verdicts on the

discriminatory failure to restore rank claims of Charles Alexander and Robert

Upshaw.

      For ease of analysis, we group the claims according to the type of

employment discrimination alleged--discipline claims, failure to promote claims,

assignment or transfer claims, reclassification claims, access to promotional

examinations claims, and restoration of rank claims.

A. Discipline Claims

      Major A.M. Alexander and Sergeant James NeSmith alleged that they were

disciplined more severely than were black officers who committed similar offenses

because of their race. To establish discrimination in discipline, just like showing

discrimination in hiring, a plaintiff must first make out a prima facie case

demonstrating: 1) that he belongs to a protected class under Title VII; 2) that he

was qualified for the job; and 3) that a similarly situated employee engaged in the

same or similar misconduct but did not receive similar discipline. See Lathem v.

Dep’t of Children and Youth Servs., 

, 792 (11th Cir. 1999); Holifield

v. Reno, 

, 1562 (11th Cir. 1997). Once a plaintiff makes a prima

facie showing, the burden of going forward shifts to the employer who must


                                          57
provide a specific legitimate non-discriminatory reason for disciplining the

employees differently. See 

; 

.

Finally, the ultimate burden of persuasion rests with the plaintiff who must show

that the proffered legitimate reasons for the different disciplinary actions were

pretextual thereby permitting, but not compelling, the trier of fact to conclude that

the employment action at issue was the product of illegal discrimination. See

; 

; 

.

1. Major A.M. Alexander

      Major Alexander claims that he was disciplined more severely than were

similarly situated black officers who committed similar offenses on account of his

race. Major Alexander was both suspended for fifteen days and transferred from

his position in the Service Division after allowing a subordinate to drive several

Department cars home in violation of Sheriff Barrett’s instructions. While Sheriff

Barrett contended that the suspension and transfer of Alexander to Grady Hospital

were appropriate disciplinary responses to Major Alexander’s transgression, Major

Alexander presented evidence suggesting he was demonstrably treated more

harshly than a black officer who committed exactly the same offense. Alexander

claimed that Major Louwinski, a black officer, also allowed a subordinate law

enforcement officer, Teresa Simon, to drive a car home in violation of


                                          58
departmental policy but, unlike Alexander, he was not disciplined. While both

Louwinski and Sheriff Barrett testified that Louwinski had received permission

from the Sheriff before authorizing Simon to drive the car home, Alexander

argued that this assertion was not worthy of belief. Neither Louwinski nor Sheriff

Barrett could produce a copy of the memorandum Louwinski claimed that he wrote

to Sheriff Barrett seeking permission to allow Simon to take home a Department

vehicle. And, when pressed on cross-examination, Louwinski conceded that he

could not even remember what the memorandum supposedly sa

ddition,

another officer, Barron Cole, testified that soon after Major Alexander left the

Service Division and Louwinski took over, Louwinski allowed three more law

enforcement officers to drive Department cars home, without the imposition of any

sanctions. Neither Major Louwinski nor Sheriff Barrett submitted any evidence

suggesting that Sheriff Barrett authorized Louwinski to allow any of those officers

to take home Department cars, and none of their names appeared on a list of

officers permitted to take home Department vehicles submitted into evidence by

the Defendants. Based on all the evidence presented, we are satisfied the jury had

sufficient basis to find that Alexander was treated more harshly than Louwinski

because of his race. Accordingly, we uphold the jury’s compensatory damages

award against Sheriff Barrett.


                                         59
        We must consider separately the appropriateness of the jury’s award of

punitive damages. Last term in Kolstad v. American Dental Ass’n., 

,

(1999), the Supreme Court determined the circumstances under

which a court can award punitive damages under Title VII.26 The Supreme Court

rejected the holding of the Court of Appeals for the District of Columbia that

eligibility for punitive damages required a showing of “egregious” misconduct by

the employer. 

. The Court emphasized that what was

necessary for an award of punitive damages was not “a showing of egregious or

outrageous discrimination” but only a showing that the employer acted with the

appropriate state of mind. 

The appropriate state of mind meant acting

“with malice or with reckless indifference to [the plaintiff’s] federally protected

rights,” § 1981a(b)(1), which, the Court explained, required a showing of either an

evil intention to deprive a plaintiff of his federally protected rights or a conscious

indifference to these rights. 

At a minimum, the Court explained,

   26
      Title VII’s punitive damages provision was based on §§ 1983 and 1981 standards. See, e.g.,

; Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 

(5th Cir.
1999)
   27
      The Supreme Court in Kolstad relied primarily on its earlier case of Smith v. Wade, 

(1983), which described the standard for awarding punitive damages in § 1983 cases, to
illuminate the meaning of the terms “malice” and “reckless indifference” as used in the parallel
standard for awarding punitive damages under Title VII. Smith, like Kolstad, emphasized that
malice or an intent to injure was not required for an award of punitive damages, but only reckless
indifference which, the Court suggested, entailed a “criminal indifference to civil obligations” or
a “subjective consciousness of risk of injury.” 

n. 6, 41, 51.

                                                60
in order to be liable in punitive damages, “an employer must . . . discriminate in

the face of a perceived risk that its actions will violate federal law.” 

      The Supreme Court emphasized that this standard of liability is higher than

that for establishing a right to compensatory damages. 

Liability for

punitive damages requires not merely a showing of intentional discrimination but a

showing that the employer acted with “knowledge that it may be acting in

violation of federal law.” 

The Court explained that under this

standard:

      [t]here will be circumstances where intentional discrimination does
      not give rise to punitive damages . . . . In some instances, the
      employer may simply be unaware of the relevant federal prohibition.
      There will be cases, moreover, in which the employer discriminates
      with the distinct belief that its discrimination is lawful. The
      underlying theory of discrimination may be novel or otherwise poorly
      recognized, or an employer may reasonably believe that its
      discrimination satisfies a bona fide occupational qualification defense
      or other statutory exception to liability.

Id at 2125. The instant case, however, does not fall into this category of cases in

which intentional discrimination was shown but the appropriate state of mind for

punitive damages was not. The theory of discrimination at issue in this case, the

illegality of race-based employment decisions, is neither novel nor poorly

recognized. The question of race as a bona fide occupational qualification was

never suggested. Most importantly, however, Sheriff Barrett did not operate under


                                           61
any misapprehension about the legality of treating black and white law

enforcement officers differently. Indeed, Sheriff Barrett unambiguously testified

that she knew it was illegal to treat employees differently on account of race.28

Given the jury’s amply supported finding that Sheriff Barrett intentionally

discriminated against Alexander on account of his race, in concert with Sheriff

Barrett’s self-professed understanding that such treatment deprives an employee of

his federal rights, a reasonable jury could conclude that Sheriff Barrett indeed

acted “in the face of a perceived risk that [her] actions [would] violate federal law.”

   28
        The relevant portion of the transcript is as follows:

                Q:      Well, it wouldn’t be--would you agree that it would be
                        permissible to terminate people because of their race?

                A:      Would I agree--I’m sorry.

                Q:      Does any reason include race?

                A:      It wouldn’t for me.
                                                  ...

                Q:      So when you say that they are terminable at will or could be
                        fired for any reason, you are not asserting that it would be
                        okay to fire someone because of their race?

                A:      I would never assert that, no.
                                                  ...

                Q:      . . . Although no one has a right to a classified job, people do
                        have a right to be considered for those jobs independent of
                        their race. Would you agree?

              A:     Certainly.
        R3-16-216-217.

                                                  62


See also Equal Employment Opportunity Commission v. Wal-Mart

Stores, Inc.,187 F.3d 1241, 1246 (10th Cir. 1999) (holding that because store

manager testified he was familiar with the requirements of the ADA a reasonable

jury could have concluded that the employer intentionally discriminated against

plaintiff in the face of a perceived risk that its action would violate federal law and

upholding award of punitive damages).

      Accordingly, we uphold the jury’s punitive damages award against Sheriff

Barrett.

2. James NeSmith

      Sergeant James NeSmith alleged that on two occasions he too was

disciplined more severely than were similarly situated black employees. First,

Sergeant NeSmith points to his receipt of a letter of reprimand from Chief Deputy

Gregory P. Henderson for his role in releasing two female inmates from the Jail

who were wanted by the Waycross, Georgia police. Sergeant NeSmith was

working as the Relief Sergeant at the Booking Intake Area at the Jail when the two

women, who were supposedly wanted by the Waycross Police Department, were

brought in. After noticing discrepancies between the physical characteristics of the

two women and the descriptions of the individuals wanted by the Waycross Police

and after discussing the situation with a detective in the Waycross Police


                                          63
Department and with Sergeant David Mosley, a black man who was in charge of

the Booking Intake Area at the Jail, Sergeant NeSmith released the two women.

Soon thereafter, Sergeant NeSmith learned that the women he had released were in

fact the women who were wanted by the law enforcement authorities in Waycross.

Indeed, Sergeant Mosley testified that he bore the greater responsibility for the

decision to release the two women. Sergeant Mosley, however, received no

reprimand for his role in the release.

      Second, Sergeant NeSmith points to the discipline he received--being

assigned to the “guard shack”--after a black prisoner was assaulted in his cell while

NeSmith was on duty in the control tower. Sergeant NeSmith was working in a

control tower in the Booking Intake Area when he observed Sergeant LeBarron

Woodard and Officer Marvin Swint, both black officers, physically remove a

combative prisoner from a police car. The officers put the prisoner in a padded cell

which Sergeant NeSmith could not see from the control tower. Shortly thereafter,

the prisoner was abused in his cell. While the charges of abuse were being

investigated, NeSmith was assigned to the “guard shack,” a small building that

controls the outer gate of the Jail, and a position not generally filled by a sergeant.

The two black officers, Sergeant Woodard and Officer Swint, were not reassigned

during the investigation.


                                           64
      Defendants did not present any non-discriminatory reason for why NeSmith

received different treatment in both the booking and police brutality incidents than

did the other officers who were more closely involved, except to say simply that

NeSmith’s conduct merited the actions taken by the Department. Based on the

evidence presented showing that NeSmith received punishment when black

officers involved in the same incidents did not, we are satisfied that the jury had a

reasonable basis to find that Sergeant NeSmith was twice disciplined on account of

his race.

B. Failure to Promote Claims

      In order to prevail on a discriminatory failure to promote claim, each

plaintiff must establish a prima facie case of race discrimination by showing that:

1) he is a member of a protected minority; 2) he was qualified and applied for the

promotion; 3) he was rejected despite his qualifications; and 4) other equally or

less qualified employees who are not members of the protected minority were

promoted. See Taylor v. Runyon, 

, 866 (11th Cir. 1999) (citing Wu

v. Thomas, 

, 1483 (11th Cir. 1988)). Again, once the plaintiff has

made out a prima facie case of discrimination, the employer must articulate some

legitimate, non-discriminatory reason for the employee’s rejection. See 

. If the employer meets this burden of production, the plaintiff then


                                          65
must establish that the defendant’s proffered reasons for promoting a black officer

instead of plaintiff were pretextual. See 

failure to promote case, however, a plaintiff cannot prove pretext by

simply arguing or even by showing that he was better qualified than the officer

who received the position he coveted. A plaintiff must show not merely that the

defendant’s employment decisions were mistaken but that they were in fact

motivated by race. We have explained, “a plaintiff may not establish that an

employer’s proffered reason is pretextual merely by questioning the wisdom of the

employer’s reasons, at least not where . . . the reason is one that might motivate a

reasonable employer.” 

. See also Damon v. Fleming

Supermarkets of Florida, Inc., 

, 1361 (11th Cir. 1999) (emphasizing

that courts “are not in the business of adjudging whether employment decisions are

prudent or fair. Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision”); Deines v. Texas Dept. of

Protective and Regulatory Servs., 

(5th Cir. 1999) (explaining that “it

is not the function of the jury to scrutinize the employer’s judgment as to who is

best qualified to fill the position . . . . The single issue for the trier of fact is

whether the employer’s selection of a particular applicant over the plaintiff was

motivated by discrimination.”). However, both the Supreme Court and this court


                                             66
have observed that evidence showing an employer hired a less qualified applicant

over the plaintiff may be probative of whether the employer’s proffered reason for

not promoting plaintiff was pretextual. See Walker v. Mortham, 

,

1190 (11th Cir. 1998) (“‘The fact that a court may think that the employer

misjudged the qualifications of the applicants does not in itself expose him to Title

VII liability, although this may be probative of whether the employer’s reasons are

pretexts for discrimination.’”) (quoting 

). See also

(stating that evidence of plaintiff’s superior experience

“would permit a jury to disbelieve” that the employer actually relied on the chosen

candidate’s experience when it promoted him).

      Other circuits have more clearly articulated the evidentiary burden a plaintiff

must meet in order to prove pretext by showing he was more qualified than the

person promoted. In Deines, for example, the Fifth Circuit affirmed the district

court’s instruction to the jury stating that: “disparities in qualifications are not

enough in and of themselves to demonstrate discriminatory intent unless those

disparities are so apparent as virtually to jump off the page and slap you in the

. The court explained that the phrase “jump off the page and

slap you in the face” “should be understood to mean that disparities in

qualifications must be of such weight and significance that no reasonable person,


                                           67
in the exercise of impartial judgment, could have chosen the candidate selected

over the plaintiff for the job in question. This evidentiary standard does not alter

the plaintiff’s evidentiary burden to prove the fact of intentional discrimination by

a preponderance of the evidence. Instead, the standard only describes the character

of this particular type of evidence that will be probative of that ultimate fact . . . .”

The Tenth Circuit in Simms v. Oklahoma ex rel. Dept. of Mental

Health and Substance Abuse Services, 

(10th Cir. 1999), suggested a

similar evidentiary burden for proving pretext. According to the Tenth Circuit,

“Our role is to prevent unlawful hiring practices, not to act as a ‘super personnel

department’ that second-guesses employers’ business judgments. . . . Moreover . .

. [plaintiff] provides no evidence that he was so clearly better qualified than Mr.

Valley that a jury could reasonably conclude that [the employer] based its decision

on something other than its proferred reason.” 

.

         Here, the jury found that five Plaintiffs, Denise Brooks, Robert Fox, Gary

Gettis, Carolyn Masson, and James NeSmith, would have been promoted but for

their race.29 In support of their claims, Plaintiffs introduced several pieces of

generally applicable evidence. Among other things, the Plaintiffs pointed out that


    29
       Sheriff Barrett promoted five individuals to unclassified captain positions over Plaintiffs:
Greg Walker, Gary Harmon, Dorothy Walker, Edward McIver, and Mark Calloway. All of these
individuals except for Mark Calloway are black.

                                                68
between February 1993 and October 1994, nine out of ten promotions to

unclassified positions went to blacks,30 and notably that several blacks who were

promoted, Greg Walker (Sergeant to Captain), Gary Harmon (Sergeant to Captain),

and Dave Louwinski (Sergeant to Major), skipped ranks, notwithstanding the fact

that the Fulton County “classified” captain job description expressly provides that

Captains should have “two years experience as a Lieutenant or comparable rank.”

Plaintiffs established that there were no minimum qualifications or quantifiable

special skills applicable to the “unclassified” positions, that there was no formal

application or selection process for those positions, and that there were no

advertising and recruitment efforts.31 Finally, each of these Plaintiffs directed the

  30
     The ten promotions to unclassified positions made by Sheriff Barrett went to Lafayett Briggs,
David Louwinski, Michael Cooke, Gary Harmon, Edward McIver, Riley Taylor, Dorothy Walker,
Edgar Hillsman, and Greg Walker, twice. Greg Walker was promoted first to unclassified captain
on February 25, 1993, and then to unclassified major on May 11, 1994. Of these individuals only
Riley Taylor is white.
   31
      Sheriff Barrett testified at trial that there were no formal hiring requirements by which she
was bound in promoting individuals to unclassified positions. According to Sheriff Barrett:

               I know that I’m not held on the unclassified service to what is listed
               [as the minimum qualifications for jobs in the County job
               descriptions]. . . . I’m also saying I’m not held to these documents on
               the unclassified service. . . . I’m free to make those appointments
               based on my best judgment of a person’s ability to perform whatever
               function it is that I’m asking them to perform.
                                                   ...
               I don’t know there are any thresholds for eligibility as required by
               law. I think that maybe common sense might dictate that I do
               something like make certain that a person I want to appoint as
               captain is, in fact, a peace officer. But I don’t even know that I have

                                                 69
jury generally to the evidence that Sheriff Barrett engaged in a pervasive pattern or

practice of discrimination against white law enforcement officers on account of

race.

        Assessing whether the Plaintiffs have presented sufficient evidence to

sustain a verdict that they were denied a promotion because of race is particularly

difficult in a case such as this where the disputed positions are essentially political

appointments. While the usual disparate treatment case involves a position for

which the qualifications may be measured objectively, we anticipate that for

political appointments the qualifications required will be both subjective and

objective. We expect, for example, that an elected official may appoint a command

team, or a political staff, that not only is objectively qualified to handle its day-to-

day job duties, but that also shares a vision with and possesses a certain degree of

loyalty to the elected official who appoints them. See, e.g., Elrod v. Burns, 

, 367 (1976) (recognizing that loyalty is a legitimate hiring criteria for an

elected official to use when selecting individuals to serve in policymaking

positions under him); Shahar v. Bowers, 

, 1104 (11th Cir. 1997)

(noting that the state Attorney General, who is an elected official, “may properly


             thresholds [for eligibility] legally.
R24-37-4253-4254.



                                                70
limit the lawyers on his professional staff to persons in whom he has trust”). We

add that it is not the court’s role to second-guess the wisdom of an employer’s

decisions as long as the decisions are not racially motivated. We measure each

claim against these standards.

1.Denise Brooks

      Sergeant Brooks claimed that Sheriff Barrett failed to promote her to the

unclassified position of captain because of race. Brooks suggested that she was

more qualified than a black man, Greg Harmon, whom Sheriff Barrett did appoint

to an unclassified captain position because, although both were sergeants, she had

experience working in an administrative capacity in the Jail and Harmon did not.

      At trial, Sheriff Barrett plainly articulated a legitimate, non-discriminatory

reason for appointing Harmon to the unclassified position, namely that Harmon

had been elected by his peers to lead the local union and could keep an open line of

communication between the rank-and-file officers and the Sheriff. But in

response, Brooks pointed to no evidence suggesting this legitimate race-neutral

reason was not the real reason Sheriff Barrett promoted Harmon and not Brooks.

See Nix v. Radio/Rahall Communications, 

, 1184 (11th Cir. 1984)

(explaining that an “employer may fire an employee for a good reason, a bad

reason, a reason based on erroneous facts, or for no reason at all, as long as its


                                          71
action is not for a discriminatory reason”). Based on the whole record, we are

constrained to conclude that the evidence simply cannot support the jury’s finding

that Sheriff Barrett discriminated against Brooks when the Sheriff appointed

Harmon to the unclassified captain position.

2. Robert Fox

      Lieutenant Fox also alleged that Sheriff Barrett discriminated against him on

the basis of race when she failed to promote him to the position of unclassified

captain but instead promoted two black men to the unclassified position. Fox

testified that he had more experience than either Greg Harmon or Edward McIver

and had served as their supervisor before Sheriff Barrett appointed them to their

unclassified captain positions. Sheriff Barrett’s legitimate non-discriminatory

reason for promoting Harmon remains just as valid with respect to Fox as it was

for Brooks. Sheriff Barrett, however, failed to identify any specific qualifications

of McIver’s that explained his appointment. Indeed, the Sheriff offered no reason,

let alone a legitimate race-neutral reason, to explain the promotion of McIver and

not Fox. As a result, we conclude that a reasonable jury could find, as it plainly

did, that the Sheriff promoted McIver and not Fox to the position of unclassified

captain on account of race. Accordingly, we affirm the jury’s verdict in favor of

Fox on his failure to promote claim.


                                         72
3. Gary Gettis

      Captain Gettis argued that he too was more qualified than both Harmon and

Dorothy Walker who were selected to serve in unclassified positions.               Gettis

testified about his educational background and indicated that the fact that he passed

the promotional examination for the rank of captain made him qualified for the

equivalent unclassified position. Gettis also testified that he was more qualified

than Dorothy Walker for this position because Walker regularly sought his

assistance and advice with her duties and had difficulty understanding orders.

Again, Sheriff Barrett’s legitimate non-discriminatory reason for promoting

Harmon is valid and was in no way challenged as being pretextual. But, like with

McIver, Barrett failed to identify what specific qualifications merited Dorothy

Walker’s promotion. Because Sheriff Barrett failed to offer any legitimate non-

discriminatory reason to explain why Dorothy Walker was promoted over Gettis, a

reasonable jury could attribute the Sheriff’s failure to promote Gettis to race.

      Gettis also testified, however, that he would not have accepted an

unclassified position without written assurances of job security. All of the

individuals Sheriff Barrett appointed to unclassified positions accepted the

appointments without conditions and, on this record, the evidence is unrefuted that

Sheriff Barrett would not have provided Gettis with the written assurance of job


                                          73
security he desired. As a result, we are constrained to conclude that Gettis could

not have suffered any pecuniary damages as a result of not being selected as an

unclassified captain because he would not have accepted the position had it been

offered. Gettis is therefore not entitled to the “make whole” relief of the benefits

and the pay of a job he concededly would not have accepted. Accordingly, we

reverse the district court’s entry of a back pay award as well as its order granting

individual injunctive relief to Captain Gettis requiring Defendants to recalculate his

retirement and other employee benefits as if he had been appointed to an

unclassified captain position on June 1, 1993. We leave intact, however, the

compensatory damages award because there is competent testimony that he

suffered emotional distress as a result of his non-selection to the unclassified

position. Simply put, a reasonable jury could have found that even though Captain

Gettis would not have accepted an unclassified appointment had he been offered

one, he nonetheless experienced sufficient pain and suffering as a result of not

being selected for the position because of his race to justify the $10,000

compensatory damages award he received. See Stallworth v. Shuler, 

, 1435 (11th Cir. 1985) (affirming compensatory damages award of $100,000

because of emotional distress and humiliation plaintiff suffered as a result of being

denied promotions on account of race).


                                          74
4. Carolyn Masson

      Lieutenant Carolyn Masson alleged that she too was discriminated against

on the basis of race by being overlooked for unclassified captain positions that

were awarded by Sheriff Barrett to Harmon, McIver, Greg Walker, and Dorothy

Walker. As stated above, Sheriff Barrett offered no specific explanation for her

selection of either McIver or Dorothy Walker to unclassified positions. As a

result, we are satisfied that the jury had sufficient evidence from which to conclude

that Lieutenant Masson was more qualified than were McIver or Dorothy Walker

and that they were promoted instead of her on account of race.

      Like Gettis, however, Masson testified that she would not have accepted an

unclassified appointment in the absence of written assurances that she would retain

her unclassified position until she retired and that she would not be fired from that

position when another Sheriff took office. Because Masson plainly would not have

accepted the unclassified captain position had it been offered to her, again we

conclude that Masson is not entitled to the equitable relief ordered by the district

court of backpay, the pay grade, employee benefits, and seniority she would have

received had she been appointed to the position of unclassified captain on June 1,

1993. As with Captain Gettis, however, she is entitled to the $10,000 in




                                          75
compensatory damages the jury awarded her for the emotional distress she suffered

as a result of her non-selection.

5. James NeSmith

      Sergeant NeSmith argued that Sheriff Barrett discriminated against him by

denying him a promotion to the position of unclassified captain granted to Harmon,

Dorothy Walker, and Greg Walker. As discussed previously, Sheriff Barrett

proffered legitimate, non-discriminatory reasons to explain Harmon’s promotion

that the jury was given no reason to disbelieve. However, NeSmith testified that he

was more qualified than Dorothy Walker because she never passed the lieutenant

examination, and more qualified than Greg Walker because Walker had only

previously served at the Jail commissary, whereas NeSmith had worked in several

areas of the Jail, as well as in the Service and Court Services divisions. Based on

this evidence, and particularly in light of Sheriff Barrett’s complete failure to

explain why she appointed either Dorothy or Greg Walker to unclassified captain

positions, we conclude that there was sufficient evidence for the jury to find that

Sheriff Barrett did not select NeSmith for an unclassified captain position on

account of his race.

      Nevertheless, the Defendants urge us not to permit NeSmith to recover on

this claim because, they contend, he testified that he too would not have accepted


                                          76
an unclassified position without written assurances of job security. In reviewing

the record, however, we find that NeSmith’s testimony is not at all clear on this

point.32 Because a reasonable jury could understand his testimony as allowing that

NeSmith would have accepted an unclassified appointment, we uphold the jury’s

award of compensatory damages and the district court’s individual injunctive

relief.

6. Punitive Damages

          As for the Plaintiffs whose liability judgments we have upheld--namely,

Fox, Gettis, Masson, and NeSmith--we are invited to examine whether the

evidence was sufficient to support the punitive damages awarded to each of them.

As we stated previously, see 

section IV-A1, the appropriateness

of punitive damages rests on the defendant’s state of mind. In order to be liable



   32
     The relevant testimony is as follows:

                Q:     If you had been offered the captain’s position awarded to Gary
                       Harmon, would you have accepted it knowing it was an unclassified
                       position?

                A:     That’s a hard question. At that time?

                Q:     Yes, at that time.

                A:     I’m not really sure. That is a hard question to answer. Knowing
                       what I know now, no.
          R3-16-300.


                                               77
for punitive damages an employer must act with “knowledge that it may be acting

in violation of federal law.” 

. In the instant case, Fox,

Gettis, Masson, and NeSmith presented sufficient evidence to sustain the jury’s

finding that Sheriff Fox intentionally discriminated against them because of race.

This evidence, combined with Sheriff Barrett’s professed understanding that such

treatment violates federal law, is sufficient to sustain the jury’s verdict on punitive

damages. A reasonable jury could have found, based on the evidence presented,

that Sheriff Barrett acted toward them “in the face of a perceived risk that [her]

actions [would] violate federal law.” 

Accordingly we affirm the

district court’s judgment as to punitive damages on the non-selection claims.

C. Transfer and Assignments

      In order to establish job discrimination in transfers and assignments, a

plaintiff must meet a burden similar to the one required for showing discrimination

in promotions. First, a plaintiff must make a prima facie case of discrimination by

showing that he was treated differently than were similarly situated black officers

with respect to transfers and assignments. See Baldwin v. Birmingham Bd. of

Educ., 

, 955 (5th Cir. 1981). The burden of going forward then shifts

to the defendant to establish a legitimate non-discriminatory reason for the

employment decisions. See 

order to prevail, the plaintiff must then


                                          78
establish that the defendant’s asserted reasons are simply a pretext for racial

discrimination. See 

Thirteen Plaintiffs alleged that they were

discriminated against on account of race with respect to transfers and

assignments.33 Nine Plaintiffs--A.M. Alexander, Brooks, Fox, Jones, Masson,

Moore, NeSmith, Schaefer, and Steel--prevailed on their individual allegations of

discriminatory transfers and assignments. The claims of Major Alexander and

Nesmith have already been discussed in the context of their discipline claims.

After thorough review of this record, we conclude there was sufficient evidence

presented to sustain the verdict in favor of Kathy Jones, but we are constrained to

conclude that the evidence was insufficient to sustain the verdicts for Heidi

Schaefer, Guerry Moore, Benjamin Steele, Denise Brooks, Robert Fox and Carol

Masson.

1. Kathy Jones

        Sergeant Jones alleged that she was discriminated against in her request for

transfers because of her race. Jones testified that she was denied transfers out of

the Jail, where she had spent her entire career, when such transfers were given to

similarly situated black employees. Jones specifically compared herself to



   33
        Transfers denote movement between divisions within the Department, while assignments
refer to a change of job responsibility within a division.

                                            79
Sergeant Benita Wallace, a black woman, who was transferred from the Jail to the

Community Relations Division, Sergeant Marcia Greenlee, a black woman who

was transferred from the Jail to the Service Division, and Sergeant Earl Glenn, a

black man who was transferred from the Jail to the Court Services Division.34

Defendants explained that the transfers of the black officers out of the Jail was part

of Sheriff Barrett’s cross-training program designed to give officers who had

served exclusively in the Jail an opportunity to serve in other Divisions. Jones

argued that this reason for the transfer of the other officers was wholly pretextual.

Jones noted that while Sheriff Barrett said her cross-training program was aimed

specifically at officers who had served exclusively in the Jail, Jones, who had

served her entire eight-year career at the Jail, was not a beneficiary of the program.

Furthermore, Jones pointed out that at least two black sergeants were transferred

out of the Jail at a time when Sheriff Barrett testified that she needed additional

sergeants in the Jail. The evidence is sufficient to sustain the jury’s verdict




   34
        Defendants contend, and Jones agreed, that none of these transferred co-workers wore her
rank. Wallace was transferred from the Jail to the Community Relations Division upon her
promotion to the position of sergeant, but she had applied for the opening in Community Relations
while she was still working at the Jail as a deputy. Greenlee was a deputy at the time of her transfer
to the Service Division, but became a sergeant shortly thereafter. Glenn was transferred from the
Jail to the Court Services Division on the day of his promotion to sergeant. Since these co-workers
of Jones’ were promoted to sergeant and transferred at roughly the same time, we believe there is
a sufficient basis for comparison between Jones and Wallace, Greenlee, and Glenn.

                                                 80
regarding Sergeant Jones’s claim, and consequently, we affirm the district court

judgment as it pertains to liability on Sergeant Jones’s claims.

      Moreover, this evidence of intentional discrimination, combined with Sheriff

Barrett’s stated understanding that race-based discrimination in employment

violated federal rights, is sufficient to sustain the jury’s award of punitive damages

for Jones. See 

section IV-A1.

2. Guerry Moore

      Corporal Moore also alleged that he was discriminated against by Sheriff

Barrett because of his race when he was reassigned within the Court Services

Division from the Superior Court to the Juvenile Court to operate the metal

detector there. Moore was assigned to the Juvenile Court after being accused by an

unknown person in the Sheriff’s Department of having used Department computers

to review personnel records in connection with the instant lawsuit. Moore argued

the position at the metal detector was tedious and beneath someone with his

qualifications.

      Considering all of the evidence and drawing all inferences in a light most

favorable to the non-moving party, we are constrained to conclude that the

evidence does not sustain Corporal Moore’s claim that Sheriff Barrett

discriminated against him on the basis of race when he was reassigned to work the


                                          81
metal detector. First, Corporal Moore himself did not attribute the reassignment to

racial discrimination, but rather to retaliation for his alleged improper use of

Department computers. Retaliation claims, however, are not part of this lawsuit.

Second, Corporal Moore did not present any evidence of a similarly situated black

comparator and therefore did not show that he was treated differently because of

his race. See Watkins v. Sverdrup Technology, Inc., 

, 1315 (11th

Cir. 1998) (explaining that “[t]he most fatal shortcoming . . . was that . . . Plaintiffs

did not identify . . . employees similarly situated to themselves”). Third, Corporal

Moore actually turned down the opportunity to be transferred out of the Court

Services Division to the Service Division which would have ended his metal

detector duty. Based on this record, we cannot sustain the jury’s finding that

Corporal Moore was discriminated against on the basis of race. Accordingly, we

reverse the district court’s judgment in this respect.

3. Heidi Schaefer

      Sergeant Schaefer alleged that her requests for transfers out of the Jail and

for reassignment within the Jail were denied on account of her race. Schaefer

testified that she had sought numerous transfers out of the Jail. According to the

record, however, all of Schaefer’s transfer requests were made in 1988, notably

four years before Sheriff Barrett took office and well outside the statute of


                                           82
limitations for Title VII (180 days) or section 1981 and section 1983 claims (two

years). Schaefer also testified that she was repeatedly rebuffed when she sought

reassignments within the Jail while Sheriff Barrett was in office. Schaefer testified

that she requested to work at Visitation, Intake Booking, and Medical, but that she

generally received assignments to work as a floor deputy. Schaefer claimed that

black officers were assigned to the areas she considered more desirable. Schaefer

did not however identify specifically which black officers were given the

assignments Schaefer desired, which positions they were assigned to, which

positions they were reassigned from, how long they had held their previous

assignments, or what their qualifications were for the new assignments. As such,

Schaefer has not satisfied her burden of showing that she was treated differently

than similarly situated black officers, much less has she shown that such disparate

treatment was because of race. See Holifield v. Reno, 

, 1562 (11th

Cir. 1997) (explaining that “[t]o make a comparison of the Plaintiffs’s treatment to

that of non-minority employees, the plaintiff must show that he and the employees

are similarly situated in all relevant respects”); Smith v. Stratus Computer, Inc., 

, 17 (1st Cir. 1994) (noting that “for us to compare Smith’s treatment with

that of terminated or transferred male executives in a meaningful way, Smith

would have to show that she was similarly situated to those men in terms of


                                          83
performance, qualifications and conduct, ‘without such differentiating or

mitigating circumstances that would distinguish’ their situations”) (quoting

Mitchell v. Toledo Hosp., 

, 583 (6th Cir. 1992)). Accordingly, we

reverse the district court’s judgment in favor of Schaefer on her transfer and

assignment claims.

4. Benjamin Steele

      Sergeant Steele alleged that his transfer and reassignment requests likewise

were denied because of his race, however Steele too failed to show he was treated

differently than a similarly situated black officer. In June 1994, Sergeant Steele

requested in writing to his superior, Captain Nash, that he be permanently

transferred from the Jail to the Training Division for firearms instruction. In July

1994, Sergeant Steele requested in writing a reassignment to the day shift. Both

requests were denied. Sergeant Steele also argued that his temporary removal from

participation in a rotation of firearm training instructors was motivated by race.

      The evidence in the record is not sufficient to sustain the verdict as to any of

Steele’s claims. As for the transfer claim, the evidence reflects that only one

officer, a white man, was a permanent fire range instructor at the time in question.

Because there was only one such position and it was not held by a black officer,

there was no similarly-situated black comparator and no evidence that the denial of


                                          84
Steele’s transfer request was because of race. See 

.

Similarly, with respect to the reassignment claim, Steele offered no evidence of a

similarly situated black comparator who received a reassignment similar to the one

he was denied. As for the claim regarding Sergeant Steele’s temporary removal

from the firearm training rotation, Defendants argued that Sergeant Steele was

removed from the rotation temporarily because the Jail was short of sergeants.

Sergeant Steele also conceded that there was a shortage of sergeants at the Jail

during his regularly scheduled shift, and he offered no evidence suggesting this

proffered reason for his temporary removal from the firearm rotation was

pretextual. Based on this record, we conclude that a reasonable jury could not have

found the Defendants’ legitimate, non-discriminatory reason for Sergeant Steele’s

temporary removal from the training rotation to be pretextual, and we therefore

reverse the jury verdict rendered in Steele’s favor.

5. Denise Brooks

      Sergeant Brooks alleged discrimination in the denial of her requests for

transfer or reassignment to different positions within and outside the Jail. Shortly

after Sheriff Barrett took office, Brooks requested a transfer from the Jail to the

Court Services Division. Her request was denied and she was informed that no

transfers were being granted during the transition between the McMichael and


                                          85
Barrett administrations. Brooks was also denied reassignment within the Jail to

Central Control and Records. Brooks argued she was discriminated against on the

basis of race because Antonio Johnson, a black man, was assigned to Central

Control instead of her.

      As for the transfer claim, Brooks conceded that no one was transferred

during the transitional period and that after the period ended both black and white

supervisors were transferred. Brooks did not produce any evidence showing that a

similarly situated black officer was permitted to transfer at the time when she was

not. As for the reassignment claim, Brooks could not recall when she had

requested assignments to Central Control and Records or who was the Sheriff at

that time. She therefore established no causal nexus between Sheriff Barrett and

the challenged employment decisions. See 

, 101 S.Ct. at

1093, 

(noting that the plaintiff bears the burden of showing the

defendant intentionally discriminated against her). Furthermore, Brooks was not

sure that Johnson ultimately received the Central Control assignment and did not

know the identity or race of the individual who ultimately received the Records

assignment. She did not, therefore, show she was treated differently than a

similarly situated black comparator with respect to reassignments. We conclude

that the evidence was not sufficient to sustain the jury’s finding that the Defendants


                                         86
discriminated against Brooks on the basis of race in denying either her transfer or

her reassignment requests.

6. Robert Fox

      Lieutenant Fox alleged that Sheriff Barrett transferred him from the Court

Services Division to the Jail in 1994 because of his race. Defendants contend that

at the time Fox was transferred to the Jail, a number of other lieutenants--white and

black alike--were also transferred from the Jail to other divisions, and from other

divisions to the Jail in furtherance of Sheriff Barrett’s policy of cross-training

officers. Fox failed to present any evidence that could cause a reasonable jury to

disbelieve Defendants’ proffered reason for Fox’s transfer, or to believe his

transfer was instead the product of race-based discrimination. See 

; Karazanos v. Navistar Int’l Trasp. Corp., 

, 336 (7th Cir.

1991). As a result, we reverse the jury’s verdict in his favor.

7. Carolyn Masson

      Lieutenant Masson alleged that she was discriminated against on the basis of

race when she was reassigned from the Female Detention Unit to the Superior

Court and then reassigned back to the Female Detention Unit five months later

after an incident involving a subordinate. Masson argued that while she repeatedly

asked to be reassigned from her position at the Female Detention Unit to another


                                          87
division in the Court Services, her reassignment to work the metal detector at the

Superior Court was beneath her and was the product of race-based discrimination,

as was her reassignment back to the Female Detention Unit five months later.

      Masson testified that she did not know of any other lieutenant who was

assigned to work the metal detector at the Superior Court. While this may be true,

the record reflects that Major Jones assigned Masson to operate the metal detector

in the mornings because Masson requested a workday from 7:30 to 3:30 p.m. In

order to accommodate this request, Major Jones explained to Masson that she

would need to assist with the metal detectors in the mornings and Masson agreed.

Masson offered no evidence suggesting the transfer was discriminatory.

      Defendants also presented evidence showing that Masson was reassigned to

the Female Detention Unit because she had failed to adequately supervise a

subordinate at the Superior Court metal detector and had allowed weapons to be

brought into the courthouse. Defendants also introduced testimony from Masson’s

supervisor, Captain Arndt, that Masson often complained about and questioned

assignments he gave her and had personality conflicts with several of the deputies.

      Based on review of all of the evidence presented, there is no basis for a

reasonable jury to conclude that Masson’s assignment to the metal detector at the

Superior Court or her subsequent reassignment to the Female Detention Unit was


                                         88
made on account of race. Defendants proffered legitimate, non-discriminatory

reasons for each employment decision, which remain undisputed. We therefore

reverse the jury verdict rendered for Lieutenant Masson.

D. Reclassification Claims

      According to Fulton County employment practices, a Department head may

seek an upward reclassification of an employee’s classified position when the

supervisor believes the employee is performing the duties of a higher level

position. From the beginning of her tenure on December 14, 1992, to the advent of

this lawsuit in April 1994, Sheriff Barrett reclassified four sworn officers, all of

whom were black. The jury determined that Sheriff Barrett did not reclassify

Plaintiffs Sergeant Bolt and then-Acting Sergeant Smith in whole or in part

because of their race.

      Bolt argued that Sheriff Barrett discriminated against him on the basis of

race by not reclassifying him as a lieutenant despite the fact that he performed the

tasks of a lieutenant for thirteen months after the retirement of Lieutenant Hicks.

Smith too alleged that Sheriff Barrett discriminated against him by not

reclassifying him to the position of sergeant even though he became an acting




                                          89
sergeant in 1991, carried out the responsibilities of a sergeant, and received the

Sergeant-of-the-Year Award.35

        Defendants offered two non-discriminatory reasons for not reclassifying

Bolt. Defendants contended that Bolt presented no evidence that Sheriff Barrett

knew of his desire to be reclassified, and that Bolt did not complete the lieutenant’s

exam. Defendants’ explanation that Bolt failed to inform Sheriff Barrett of his

desire to be reclassified could be a legitimate, non-discriminatory reason for failing

to reclassify him if the sworn officers who were reclassified had informed the

Sheriff of their desire to be reclassified. However, the record does not demonstrate

that those four reclassified officers expressed any interest to Sheriff Barrett in

being reclassified. Defendants’ other proffered explanation for failing to reclassify

Bolt also is inadequate. Bolt’s failure to complete the lieutenant’s exam affects

only his eligibility for promotion to the position of classified lieutenant; it does not

alter his eligibility for reclassification, which is based solely on his performance of

the duties of the higher position, and does not require completion of the formal

requirements for promotion. A reasonable jury could have disbelieved these

reasons and found the real reasons for the failure to reclassify to be race-based

discrimination. As stated previously, the evidence of Sheriff Barrett’s intentional


   35
        Smith was reclassified as a classified sergeant in July 1994.

                                                 90
race discrimination against Bolt, combined with evidence of Barrett’s

understanding that such discrimination violated federal law, is sufficient to sustain

the jury’s award of punitive damages as well. A reasonable jury could have

concluded that Sheriff Barrett intentionally discriminated against Bolt with

knowledge that doing so violated Bolt’s federally protected rights. See 

section IV-A1.

      As for Smith, the Defendants argue that the jury in its special verdict form

concluded that Smith should have been reclassified as of November 1992, before

Sheriff Barrett assumed office. They contend, therefore, that Sheriff Barrett cannot

be held liable for Smith’s not being reclassified. Defendants’ argument is

unpersuasive. The fact that the jury determined that Smith should have been

reclassified as of November 1992, does not mean that the jury could not also have

reasonably found that Sheriff Barrett should have reclassified him upon taking

office soon thereafter. The jury could have concluded that because Smith was

qualified for reclassification in November 1992, Sheriff Barrett should have known

this fact when she took office in December and should have reclassified him as

soon as she had the power to do so. Accordingly, we affirm the entry of the jury’s

verdict of compensatory damages and injunctive relief for Smith but order that




                                          91
Smith’s backpay be recalculated from December 14, 1992, when Sheriff Barrett

took office, instead of from November 1992.36

E. Promotional Examination Claims

        The fifth type of employment discrimination involved allegations that the

Defendants prevented three of the Plaintiffs from taking promotional examinations.

Sergeants Bantin, Smith, and Schaefer alleged they were not permitted to sit for the

lieutenant’s examination because of their race. The Personnel Board administers

the eligibility requirements for taking a promotional examination for a classified

rank within the Sheriff’s Department. In order to take the promotional

examination for the rank of lieutenant, the applicants had to submit an application

showing, among other things, that they had two years of experience at the rank of

sergeant or its equivalent. All three Plaintiffs received notices of ineligibility for

the examination from the Personnel Board because they did not have the required

experience. Plaintiffs argued that three black deputies were permitted to sit for the

examination even though they had served less time as sergeants than had the

Plaintiffs. None of the jury verdicts against either Sheriff Barrett or Fulton County

withstand appellate review.




   36
        The jury did not award punitive damages to Smith.

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      With respect to Sheriff Barrett, the Plaintiffs have failed to demonstrate the

required causation because they presented no evidence indicating that Sheriff

Barrett or the Sheriff’s Department played a role in designating Bantin, Smith, and

Schaefer ineligible to take the promotional examination for the position of

classified lieutenant. Moreover, as we have explained previously, Sheriff Barrett is

not the “final policymaking authority” for employment decisions related to

classified positions generally or for decisions related to eligibility to take

promotional exams for classified positions more specifically. Notably, in Fulton

County, applicants for classified positions are recruited and screened by the

Personnel Department and classified employees enjoy civil-service type

protections. See Scala v. City of Winter Park, 

, 1402-03 (11th Cir.

1997) (holding that the city manager and public safety director of Winter Park,

Florida were not final policymakers because their termination decisions were

subject to meaningful administrative review by a city civil service board). Based

on this conclusion, and our determination that there was no “policy or custom” of

discrimination against white employees in Fulton County, Fulton County also

cannot be held liable under section 1983 for Plaintiffs’ promotional examination

claims.

G. Restoration of Rank Claims


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        The final jury verdicts Defendants challenge pertain to the restoration of

rank claims of Sergeant Charles Alexander and Corporal Robert Upshaw. Both

Alexander and Upshaw voluntarily accepted reductions in rank in order to be

transferred out of the Jail. Both accepted demotions to the position of deputy and

were transferred to the Court Services Division prior to the Barrett regime.37 They

argued they were treated differently with regard to the restoration of their rank than

was Sergeant Barbara Woodward, a black officer, who also voluntarily surrendered

her rank in order to be transferred from the Jail but later had her rank restored.

        As Sheriff Barrett argued, however, Woodward was not similarly situated to

Alexander and Upshaw because she left the Jail due to a medical condition and

contested her loss of rank with the Grievance Review Committee, which then

recommended that she be restored to the rank of sergeant. Neither Alexander nor

Upshaw sought relief for giving up their rank, even though they knew of the

existence of the Grievance Review Committee. In addition, both Alexander and

Upshaw failed to present any evidence showing that Sheriff Barrett had any

personal involvement in the failure to have their ranks restored. On this record, we


   37
      While at Court services in 1993, Alexander successfully competed for promotion to the rank
of sergeant, and was promoted to that rank on October 12, 1993. Presumably, therefore, Alexander
is claiming that Sheriff Barrett discriminated against him by not restoring his rank between
December 14, 1992, the first day of Sheriff Barrett’s tenure, and October 12, 1993, the date of his
promotion.

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conclude, that no reasonable jury could find the failure of Sheriff Barrett to restore

the ranks of Alexander and Upshaw was the result of race-based discrimination.

Defendants are, therefore, entitled to judgment as a matter of law on these claims.

                                          V.

      In sum, we affirm the district court’s denial of qualified immunity to Sheriff

Barrett, the denial of the Defendants’ motion for judgment as a matter of law as to

Fulton County’s liability under section 1983, the denial of the Defendants’ motion

for severance of the Plaintiffs’ individual claims of discrimination, and its jury

instructions. We also find that the Defendants did not suffer substantial injustice

as a result of the court’s erroneous evidentiary rulings. With respect to the

Defendants’ challenge to the sufficiency of the evidence, we hold that the evidence

was sufficient to support the jury’s verdict on the following claims: the

discriminatory discipline claims of A.M. Alexander and NeSmith; the failure to

promote claims of Fox, Gettis, Masson, and NeSmith; the discriminatory transfer

claim of Jones; and the reclassification claims of Bolt and Smith. However, we are

constrained to find that the evidence was insufficient to support the jury’s verdicts

on the following claims and awards: Brook’s failure to promote claim; the transfer

and assignment claims of Brooks, Fox, Masson, Moore, Schaefer and Steele and

their punitive damages awards for those claims; the promotional examination


                                          95
claims of Bantin, Schaefer, and Smith and their punitive damages awards for those

claims; and the restoration of rank claims of Charles Alexander and Upshaw. We

also reverse the district court’s grant of back pay and individual injunctive relief to

Gettis and Masson. Finally, we instruct the district court to recalculate Smith’s

back pay and benefits from December 14, 1992.

      In short we AFFIRM in part, REVERSE in part, and REMAND for further

proceedings consistent with this opinion.




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