CARL J. BARBIER, U.S. District Judge.
Civil Action 97-2523, Barry Fletcher. et al. v. City of New Orleans, et al., is one of several suits that were filed by white New Orleans police officers who sought to challenge the promotion policies of the New Orleans Police Department ("NOPD"). The Fletcher plaintiffs are five white NOPD sergeants who were eligible for promotion to lieutenant in August 1997. They allegedly lost their place in consideration for promotions when the Civil Service Commission voted to terminate the then-current lieutenant promotional roster.
In August 1997, they sued the City of New Orleans ("the City") and the Superintendent of Police Richard J. Pennington ("Superintendent Pennington") [collectively "Defendants"] alleging that Defendants discriminated against them on the basis of race by seeking to terminate the roster. The Fletcher plaintiffs later amended their complaint to add claims that the city had violated the consent decree entered in Williams v. City of New Orleans, Civil Action No. 73-629. The case was subsequently consolidated with three other suits that similarly challenged the promotion policies of NOPD. In January 1999, the Court granted Defendants' motion for partial summary judgment dismissing the Fletcher plaintiffs' claims of intentional race discrimination as time-barred. In April 1999, the claims pertaining to violations of the consent decree were tried to the Court after which judgment was rendered in favor of Defendants. Albright v. City of New Orleans, 46 F. Supp.2d 523 (E.D. La. 1999).
The Court's prior opinion in Albright recites a detailed procedural history of the consolidated cases, including this case, and a full description of the claims of the various plaintiffs in those suits.
Plaintiffs appealed and in December 2000, the Fifth Circuit Court of Appeals affirmed as to the issues tried but reversed the Court's finding that the intentional race discrimination claims, in so far as they pertained to the termination of the then current lieutenant promotional roster, were time-barred. Albright v. City of New Orleans, Case No. 99-30504, Nov. 1, 2000 (opinion unpublished). The case was remanded for a trial on the merits of those claims. The matter came on for trial before the Court, sitting without a jury on April 24, 2001. Prior to trial, the parties agreed to sever the issue of liability from the issue of damages. Following the one day trial on liability, the Court took the matter under advisement.
Civil Action 96-679, Charles Albright. et al. v. City of New Orleans, et al., which had been consolidated with the Fletcher suit prior to the April 1999 trial, was similarly remanded for trial on those plaintiffs' claims of intentional race discrimination. Following remand, the Fletcher and Albright claims were tried together at the April 24, 2001 trial although they arose out separate and distinct instances of alleged discrimination that occurred nearly two years apart. These Findings of Fact and Conclusions of Law pertain only to the Fletcher claims.
Having now considered the evidence, memoranda, arguments of counsel, and applicable law, the Court renders its Findings of Fact and Conclusions of Law in Civil Action 97-2523, Barry Fletcher. et al. v. City of New Orleans. et al., pursuant to Federal Rule of Civil Procedure 52(a).
BACKGROUND
Promotions within the ranks of NOPD are governed by the rules and regulations of the Civil Service Commission ("the Commission"). Officers seeking promotion to the rank of lieutenant take an examination administered by the Commission. The Commission then uses the results of the exam to create a promotional register or roster which ranks the passing candidates according to their performance on the exam. Promotions are then made from the names on the most recent promotional register.
Promotions from the lieutenants' register at issue in this case were also governed by the terms of a consent decree entered into by the City and plaintiffs in Williams v. City of New Orleans, Civil Action No. 73-629. Exhibit 1. The Williams consent decree was designed in part to provide equal employment opportunity within NOPD and to eliminate any prior racial discrimination that may have existed as well as its effects. Exhibit 1, at 9. Pursuant to the Williams decree, officers on the lieutenants' roster were grouped into "bands" according to their scores on the Commission's examination. Under the express terms of the Decree, all promotions for the rank of lieutentant were to be made first from the group or band with the highest scores until it was exhausted, and then from the group or band with the second highest scores and so forth until the list expired.
The Williams decree also created "supernumerary" or "additional" positions which could only be filled by black police officers. Promotions to these positions could be filled by a black candidate from a lower band without exhausting the current band if no black officers remained in the current band. Otherwise, according to the Decree, promotions were to be made in strict accordance with the band system's exhaustion requirements. A stipulation to the Decree ("the Williams stipulation") required the City to maintain a lieutenants to total force ratio of 4.9 percent. Exhibit 1, Stipulation, at 2. The express terms of the Williams decree provided that it would terminate as to the position of lieutenant upon expiration of the second lieutenant promotional roster published following the effective date of the decree. Exhibit 1, at 33.
The Court's prior opinion, published at 46 F. Supp.2d 253, contains a more detailed and comprehensive explanation of the Williams litigation and decree.
The Commission's rules and regulations govern the duration of promotional registers. According to Commission rules, each list must remain in force for at least one year and can remain viable for up to a maximum of five years. The decision whether to extend a list past the initial one year period for up to three years is at the discretion of the Director of the Commission. The full Commission has discretion to extend the three year period for another two years. Thus, it is completely within the discretion of the Director in the first instance, and after three years the full Commission, to decide whether to extend or terminate any promotional register. It is undisputed that neither the City nor NOPD exercises any decision making authority with respect to whether a particular roster should be extended or allowed to expire.
The promotional register for the rank of lieutenant at issue in this case was created May 26, 1994. Exhibits 4 5. This lieutenants roster was the second such roster created pursuant to the Williams decree, and therefore, was to be the last lieutenants register governed by the Decree. Absent a vote by the Commission to extend the register, it was set to expire in May 1997. which was three years after its publication. The May 26, 1994 lieutenants' register contained 104 candidates assigned to five different bands. The racial composition of the register was as follows:
Band No. Total No. in Band White candidates Black candidates Other 1 1 1 0 0 2 2 2 0 0 3 13 9 4 0 4 34 27 5 2 5 54 42 12 0
Beginning in May 1997, Superintendent Pennington, recommended to the Commission that it allow the May 26, 1994 lieutenants promotional register to expire without renewal. As of that time, only 30 of the 104 lieutenant candidates on the register had been promoted. All of the black candidates in Bands 1 through 4 had been promoted leaving numerous white candidates in Band 4 in line for promotion. Under the terms of the Williams decree, to make further promotions from that register, white candidates would have to have been selected absent a supernumerary position coming available. On May 22, 1997, the Commission voted to extend the lieutenants' promotional register for three months, until August 22, 1997.
On August 14, 1997, Superintendent Pennington wrote to the Commission urging it not to extend the register further. In that letter, Superintendent Pennington stated that he did "not foresee the need to promote additional lieutenants in the immediate future." He also urged the Civil Service Department:
to quickly proceed with the development of a new examination for Police lieutenant, incorporating those issues which reflect the current philosophy and management needs of the Department. Testing candidates, emphasizing such vital dimensions as integrity, accountability, and community policing is essential in the identification of the future leadership of the department.
Exhibit 6.
On August 14, 1997, the Commission voted to extend the register for an additional six months, until February 28, 1998. On September 18, 1997, Superintendent Pennington again wrote to the Commission urging that the Commission reconsider its August 14, 1997 decision. Exhibit 8. On October 9, 1997, Superintendent Pennington wrote to the Commission providing reasons for that request. Exhibit 9. The reasons stated were similar to those recited in his August 14th letter.
On November 20, 1997, the Commission reversed its prior decision and voted to terminate the May 26, 1994 lieutenants register. This Court granted a temporary restraining order to maintain the status quo, i.e., prevent the register from expiring prior to a trial on the merits. At the April 1999 trial, the Court determined that the temporary restraining order had been improvidently granted and dissolved the order. Thus, the May 26, 1994 lieutenant promotional roster terminated retroactively to either November 20, 1997, the date the Commission had voted to terminate the register, or August 31, 1997, the expiration date prior to the six month extension. Albright, 46 F. Supp. 2d at 532-33. With the expiration of that roster, the Williams consent decree and stipulation terminated as to the position of lieutenant. Id.
See Judge Porteous's order dated November 20, 1997, Rec. Doc. 9. At this time, the Fletcher plaintiffs also added the Commission as a defendant.
Plaintiffs Michael Glasser, Stephen Dunn, and Earle J. Frisard, Jr., were included in Band 4 of the May 26, 1994 promotional register. Plaintiffs Barry Fletcher and Bruce Little were in Band 5. All were white and had not been promoted as of the roster's termination date. They allege that the City, through Superintendent Pennington, sought termination of the May 1994 lieutenants register, in order to avoid promoting the white candidates who remained on the May 26, 1994 register. They assert that the City had several lieutenant vacancies, was in need of more lieutenants, and was out of compliance with the 4.9 percent requirement of the Williams stipulation, and therefore faced having to make several imminent promotions from the roster. They seek relief pursuant to Title VII, 42 U.S.C. § 1981 1983, the Equal Protection Clause, and Louisiana's Employment Discrimination Law, La. R.S. 23:301,et seq. Named as defendants are the City and Superintendent Pennington.
La. R.S. 23:1006, which prohibited intentional discrimination in employment on the basis of race, was repealed in the midst of the events that gave rise to this action and replaced by Louisiana's Employment Discrimination Law, La. R.S. 23:301, et seq. See 1997 La. Acts 1409, §§ 1-4, eff. Aug. 1, 1997.
Although the Commission remains a named defendant in this case, Plaintiffs presented no evidence at trial to suggest any liability on the part of the Commission and the Pre-trial Order makes no mention of any claims against the Commission. Accordingly, the Court considers any claims against the Commission as abandoned. See Kona Tech. Corp. v. Southern Pac. Transp. Co., 225 F.3d 595, 604 (5th Cir. 2000).
APPLICABLE LAW
Under Title VII, an employer may not discriminate on the basis of race, color, religion, sex, or national origin. Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994) (citing 42 U.S.C.A. § 2000e-2). In Title VII intentional race discrimination cases where there is no direct evidence of discrimination the Court employs the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lawrence v. University of Tex. Med. Branch, 163 F.3d 309, 312 (5th Cir. 1999). Employment discrimination claims brought under 42 U.S.C. § 1981 and 1983, as well as Louisiana's discrimination statutes, are analyzed under the evidentiary framework applicable to claims arising under Title VII.Lawrence, 163 F.3d at 311 (citing Tanik v. Southern Methodist Univ., 116 F.3d 775, 775 (5th Cir. 1997); LaPierre v. Benson Nissan. Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996)); Plummer v. Marriott Corp., 654 So.2d 843, 848 (La.App. 4th Cir. 1995) (citing Alphonse v. Omni Hotels Mgt. Corp., 643 So.2d 836 (La.App. 4th Cir. 1994); Bennett v. Corroon Black Corp., 517 So.2d 1245 (La.App. 4th Cir. 1987)).
Under the McDonnell Douglas framework, plaintiff must initially establish, by a preponderance of the evidence, a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993) (citing Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). To establish a prima facie case of discriminatory failure to promote plaintiff must prove (1) that he was a member of a protected class; (2) he applied for a promotion for which he was qualified; (3) he was denied the promotion; (4) and his employer continued to seek applicants for the position. See Evans v. City of Houston, 246 F.3d 344, 350 (5th Cir. 2001) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1817; Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223-24 (5th Cir. 2000)). Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. St. Mary's Honor Center, 509 U.S. at 506, 113 5. Ct. at 2747 (citing Burdine, 450 U.S. at 254, 101 S.Ct. at 1094)
Assuming plaintiff successfully establishes a prima facie case, defendant then has the burden of "producing evidence" that the adverse employment action was taken for legitimate nondiscriminatory reasons. Id. at 507, 113 S.Ct. at 2747. In particular, defendant must set forth reasons, that if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause the employment action. Id. (citing Burdine, 450 U.S. at 254-55, n. 8, 101 S.Ct. at 1094-95 n. 8). Evaluation of the proffered reasons can involve no credibility assessment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000)
If defendant successfully articulates a non-discriminatory reason, the inference of discrimination created by plaintiff's prima facie case "drops out of the picture" and the fact finder must decide the "ultimate question" which is whether plaintiff has proved intentional discrimination. Evans, 246 F.3d at 350 (quoting St. Mary's Honor Center, 509 U.S. at 511-12, 113 S.Ct. 2742). In other words, the burden shifts back to the plaintiff to demonstrate that defendant's proffered reason was simply a pretext for the real reason — discrimination. Reeves, 530 U.S. at 143, 120 S.Ct. at 2106. When defendant offers more than one reason for its employment decision, plaintiff must show that all of the proffered reasons are pretextual. See Ghosh v. Indiana Dep't of Envir. Mgt., 192 F.3d 1087, 1091-92 (7th Cir. 1999) (citing Mills v. Health Care Serv. Corp., 171 F.3d 450, 458 (7th Cir. 1999)).. In making his showing of the "ultimate question, " plaintiff can rely on evidence that the employer's reasons were a pretext, and the fact-finder is permitted, although not required, to infer from the falsity of the explanation that the employer is seeking to cover up a discriminatory purpose. Evans, 246 F.3d at 350 (citing Reeves, 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105). Notwithstanding the intermediate evidentiary burden shifting, the ultimate burden of proving that defendant intentionally discriminated against the plaintiff "remains at all times with the plaintiff." Reeves, 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1089)
ANALYSIS
Turning to the case at hand, the Court concludes that Plaintiffs have proven a prima facie case of intentional race discrimination. All five plaintiffs were qualified for the position of lieutenant by virtue of passing the lieutenants' examination and being on the May 26, 1994 promotional register. They were all in effect denied promotions when the May 26, 1994 register expired. They are members of a "group" protected by Title VII in the context of reverse discrimination, see Byers v. Dallas Morning News. Inc., 209 F.3d 419, 426 (5th Cir. 2000), and there is no dispute but that the City always intended to promote lieutenants in the future.
Because Plaintiffs have established of prima facie case of intentional race discrimination, the burden of production shifts to Defendants to proffer legitimate non-discriminatory reasons for seeking to have the May 26, 1994 lieutenants' promotional roster terminated. At trial, Superintendent Pennington testified as to two reasons for wanting to have the roster expire. First, he explained that NOPD was not in need of more lieutenants as of mid to late 1997. Second, he repeated the reasons previously articulated in his letters to the Commission and in his testimony at the August 14, 1997 Commission meeting. Exhibits 6, 9, 10. In particular, he stated that the lieutenants' examination that produced the roster had been prepared in 1991 well before he began his tenure with NOPD. Thus, the superintendent who had served prior to his immediate predecessor presumably had input into the examination but Superintendent Pennington had none. Accordingly, he did not believe the examination was reflective of his philosophy and goals for NOPD and the traits that he found important for leadership within the department, e.g., community policing, integrity, accountability, leadership skills, and ethics. He testified that race played no part in his efforts to have the register terminated.
Superintendent Pennington became superintendent of NOPD in October 1994.
The Court concludes that Defendants' proffered reasons, if accepted as true, qualify as legitimate non-discriminatory reasons for their actions. Accordingly, Defendants have rebutted Plaintiff's prima facie case of intentional discrimination and the burden now shifts back to Plaintiffs to prove that Defendants' proffered reasons are a pretext for unlawful discrimination. The Court will consider each proffered reason in turn.
With respect to the first proffered reason, i.e., that NOPD simply did not need additional lieutenants, Plaintiffs offered significant evidence to cast doubt on Defendants' assertion that they believed NOPD was not in need of lieutenants. First, Plaintiffs offered a letter dated April 24, 1997, which was authored by Chief Administrative Officer Marlin Gusman and directed to Superintendent Pennington. Exhibit 18. In that letter, Mr. Gusman explained that NOPD had fifteen lieutenant vacancies in the various districts, and requested that Superintendent pennington inform Mr. Gusman as to what his plans were for those positions. At trial, Superintendent Pennington testified that he did not recall receiving the letter. Mr. Gusman testified that Superintendent Pennington did not respond to the letter.
Second, a stipulation was read into the record that if Major James Treadaway were called to testify, he would state that in 1997 he told Superintendent Pennington that the City was out of compliance with the 4.9 percent requirement of the Williams stipulation. Superintendent Pennington, on the other hand, testified that he thought that the department was in compliance with the 4.9 percent requirement.
Another stipulation was read into the record, this time pertaining to NOPD Captain Edwin Compass. The parties stipulated that, if called to testify, Captain Compass would state that in August 1997 he was using sergeants as acting platoon commanders — a role normally filled by a lieutenant. The substance of the stipulation was corroborated by the testimony of Sergeant Steven Dunn, plaintiff herein. Sergeant Dunn testified that he had been directed to perform the work of a lieutenant by his district commander. Admitted into evidence was a letter Sergeant Dunn had written on May 15, 1997, to J. Michael Doyle, Jr., Director of Personnel for the City. In that letter, Sergeant Dunn informed the Commission that he had been performing the work of a lieutenant in his district without appropriate compensation. Exhibit 19. Mr. Doyle then authored a letter to Assistant Superintendent Ronal Serpas seeking more information with respect to Sergeant Dunn's allegations. Exhibit 20. Mr. Doyle testified that he received no response to the letter.
Finally, Plaintiffs offered evidence that two promotions (one regular and one supernumerary) were in fact made to the rank of lieutenant on October 21, 1997, just two weeks after the Superintendent's last letter to the Commission on October 9, 1997. Exhibit 9. When questioned as to why he made the October 21, 1997 promotions, Superintendent Pennington stated that he did so due to need. He testified that he was unaware of a provision within the Williams decree that would have allowed him to possibly cancel the supernumerary position rather than promote someone if there had in fact been no need.
Considering the evidence offered by Plaintiffs in response to Defendants' first proffered reason, the Court concludes that Plaintiffs have significantly undermined Defendants' assertion that they sought to terminate the roster because NOPD did not need additional lieutenants in 1997. Mr. Gusman's letter, the testimony of sergeant Dunn, and the stipulations as to Captain Compass and Major Treadaway suggest that in 1997 NOPD was in fact in need of additional lieutenants. As this Court found following the trial in 1999, the City, although not in violation of the uWilliams decree, was out of compliance with the 4.9 percent requirement. Albright, 46 F. Supp. 2d at 531. While it is a disputed issue of fact as to whether Superintendent Pennington knew about the shortage of lieutenants and noncompliance when he sought to have the register expire, the fact that he promoted two lieutenants on October 21, 1997, precludes a finding that he believed there was absolutely no need for additional lieutenants during the pertinent time period. Accordingly, the Court finds that Plaintiffs have offered sufficient evidence to impugn the veracity of Defendants' first proffered reason. Whether Plaintiffs have shown that the first proffered reason was a pretext for unlawful discrimination is addressed below.
Defendants' second proffered reason, i.e., that the list was in effect outdated, is more problematic for Plaintiffs. In an attempt to discredit Defendants' second proffered reason, Plaintiffs elicited testimony that Superintendent Pennington did not personally review the test which formed the basis for the May 26, 1994 lieutenants' promotional roster. Plaintiffs also offered proof that Sergeant Glasser, a plaintiff herein, and Samuel Bua had taken and passed the 1996-97 police captain exam yet were still not promoted to the position of lieutenant. Exhibit 17. The captain's exam had been developed during Superintendent Pennington's tenure with NOPD, and according to Sergeant Glasser, covered the criteria cited by Superintendent Pennington as lacking in the exam that produced the May 26, 1994 lieutenants' register.
Considering the evidence offered by both sides with respect to Defendants' second proffered reason, the Court concludes that Plaintiffs have failed to carry their burden of showing that the proffered reason was false much less a pretext for discrimination. The Court is unpersuaded that Superintendent Pennington's failure to promote Sergeants Glasser and Bua undermines his assertion that he believed the roster was created based upon an outdated examination. After all, Sergeants Glasser and Bua were only two of the many individuals who comprised the candidates on the roster.
Furthermore, the Court finds Defendants' second proffered reason credible in light of the factual circumstances surrounding the May 26, 1994 register. By the time Defendants sought to terminate the May 26, 1994 register, it was already three years old. It had been created based upon an examination administered in 1992. As long as the May 26, 1994 register "lived-on, " sergeants who for whatever reason had not participated in the examination, were precluded from seeking promotion to the rank of lieutenant. Given Superintendent Pennington's goal to effect change and improvement within NOPD, Defendants' reluctance to allow the roster to run the full five years permitted under Commission regulations, as had been done under previous administrations, is hardly proof of a nefarious motive. In sum, the Court finds that Plaintiffs have not shown that Defendants' second proffered reason is false.
At this juncture, Plaintiffs have discredited only one of Defendants' proffered reasons. Had Defendants offered only one reason, the Court's rejection of that reason together with Plaintiffs' prima facie case, while not compelling judgment in favor of Plaintiffs, would have permitted the Court to infer unlawful discrimination. Reeves, 530 U.S. at 148, 120 S.Ct. at 2109. However, because defendants offered two reasons for their actions, Plaintiffs were required to prove that both were pretextual. See Ghosh, 192 F.3d at 1091-92. Having failed to do so, the Court is unpersuaded that Plaintiffs have proven a case of intentional race discrimination.
At trial, the Court sustained several objections by Defendants when Plaintiffs attempted to discredit Defendants' proffered reasons by introducing evidence of other events that Plaintiffs argued would by undermine Superintendent Pennington's credibility. Some of those events had taken place as early as 1994 and others after the events that gave rise to the claims at issue here. The Court found that evidence inadmissible pursuant to Federal Rule of Evidence 404(b) because Plaintiffs were attempting to hinge liability in this case upon other acts unrelated to this litigation. Furthermore, even if the evidence were relevant, the Court would nevertheless exclude it under Rule 403 as being unfairly prejudicial and likely to obfuscate the narrow issue that was in fact before the Court. See, e.g., Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 356-60 (5th Cir. 1995). Plaintiffs were permitted to proffer the evidence, outside the presence of the Court, for purposes of appeal.
Further, it is undisputed that the decision to terminate any promotional roster lies within the sole discretion of the Commission. Defendants had no decision-making authority in that respect. And as found by this Court and affirmed on appeal, nothing in the law or Commission rules requires the extension of any promotional register. Albright, 46 F. Supp. 2d at 532. In light of these legal principles, it is puzzling that no member of the Commission was called at trial to confirm that the City's efforts are what ultimately lead to the termination of the register in late 1997.
Finally, one other aspect of this case casts an additional shadow on Plaintiffs' allegations that Defendants sought to expire the register in order to promote black candidates as opposed to white ones. Expiration of the May 26, 1994 register meant that the Williams decree would expire with respect to the position of lieutenant thereby eliminating the fifteen supernumerary lieutenant positions that were created pursuant to the decree — fifteen positions which were guaranteed to always be filled by black officers regardless of the ranking on the promotional roster. Accordingly, if Defendants were seeking to discriminate against white candidates in favor of black ones, taking steps that would ultimately lead to termination of the Williams decree would be contrary to that goal.
For the foregoing reasons, the Court concludes that the Fletcher plaintiffs have failed prove that Defendants discriminated against them on the basis of race when the City sought to secure expiration of the May 26, 1994 lieutenants' promotional roster.
Accordingly;
IT IS ORDERED that the claims of Michael Glasser, Stephen Dunn, Earle J. Frisard, Jr., Barry Fletcher, and Bruce Little against defendants the City of New Orleans, Superintendent Richard Pennington, and the Civil Service Commission are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this day of June, 2001.
CARL BARBIER
UNITED STATE STRICT JUDGE