Steverson v. Goldstein ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2205
S.W. STEVERSON, JR.,
Plaintiff-Appellee,
Cross-Appellant,
versus
LEON GOLDSTEIN, ET AL.,
Defendants-Appellants.
LEON GOLDSTEIN, JOHNNY ISBELL and
JOHNNY KLEVENHAGEN,
Defendants,
Cross-Appellees.
Appeals from the United States District Court
for the Southern District of Texas
(June 15, 1994)
Before HIGGINBOTHAM and WIENER, Circuit Judges, KAUFMAN,* District
Judge.
HIGGINBOTHAM, Circuit Judge:
A jury concluded that the Sheriff and Civil Services
Commission of Harris County discriminated against Shelby W.
Steverson on the basis of race, and that the Sheriff retaliated
against Steverson for activity protected by the First Amendment.
The district court found for Steverson on a parallel Title VII
claim and entered judgment against the County based on its own
*
District Judge of the District of Maryland, sitting by
designation.
findings and the jury's verdict. Steverson argues on a cross-
appeal that judgment should also have been entered against the
Sheriff and others in their individual capacities. We AFFIRM.
I.
Shelby W. Steverson, an African American, has been employed as
a Harris County Deputy Sheriff since 1979. During the evening of
February 27 and the early morning of February 28, 1988, while
serving as a private security guard at the U. W. Watkins' Country
Club, Steverson became involved in a word fight with another
officer, Sergeant Mark Walker.
Sergeant Walker has a history of using racial slurs. He has
referred to African Americans in roll calls, for example, as "God
damn niggers."1 He also has used racial epithets to refer to
members of the Harris County Sheriff's Department. Although the
targets of these insults reported the incidents, the Department
took no disciplinary action.
On the night of February 27, 1988, Sergeant Walker had been
called by Steverson's fellow security guards in response to an
attempted burglary near the Watkins' Country Club. Walker arrived
and entered the club. According to the district court, "Once
inside the Club, Walker verbally attacked Steverson in a racial
manner without cause and in the presence of the night club
customers. Steverson advised Walker that Steverson would report
Walker's improper decorum. Racial tensions grew." Walker left the
1
When asked whether he considered the term offensive, he
responded that, in context, it was not.
2
club and its owner followed him. The owner objected to Walker's
treatment of Steverson. Steverson intervened. Walker and
Steverson exchanged angry words. The situation became heated
because Walker was white while Steverson, the club owner, and most
of the patrons of the club were black. Witnesses testified that
violence threatened to ensue but in the end the parties went their
separate ways in peace.
The next day Steverson reported the incident. Johnny
Klevenhagen, the sheriff of Harris County, declined to process
Steverson's complaint. When Steverson submitted the complaint to
the Internal Affairs Division, he was told to resolve the issue
informally. Steverson nevertheless pursued the matter. After the
Department assessed the incident, Steverson was given a three-day
suspension followed by a ninety-day probationary period. Sergeant
Walker received a written reprimand.
Steverson appealed this result to Sheriff Klevenhagen, but to
no avail. Steverson then asked the Harris County Sheriff's
Department Civil Service Commission to review the sentence. Before
the Commission heard the appeal, Steverson joined as a named
plaintiff in a class action suit accusing the Department of
discriminating on the basis of race. After hearing Steverson's
appeal, the Commission increased Steverson's sentence to include
seven more days of suspension. In several hundred cases the
Commission had heard in the past, it had both decreased and
affirmed but had never increased a sentence.
3
Steverson attributes his discriminatory treatment to race and
his political activities. These activities included filing a class
action Title VII suit against the Harris County Sheriff's
Department, and founding and participating in an organization known
as the African American Sheriff's Deputies League. The League
opposed the election of Klevenhagen to the office of Sheriff of the
County, and Steverson publicly endorsed a competing candidate, J.C.
Mosier, for the position. Steverson spoke on the radio in favor of
Mosier and attended a meeting with Mosier at which Klevenhagen was
also present. Five days after Steverson spoke on the radio, he
received an assignment requiring him to work undesirable hours.
Steverson's new shift began at 6:00 pm and ended at 2:00 am, making
it impossible for him to continue his private employment as a
security guard. No other member of the Sheriff's Department had to
work these hours.
The district court found as a matter of law that the Civil
Service Commission violated Steverson's due process and equal
protection rights by augmenting his sentence and, "out of an
abundance of caution," made findings of fact. The court submitted
to the jury Steverson's claims under 42 U.S.C. §§ 1981 and 1983 of
discrimination on the basis of race and of retaliation for his
Title VII lawsuit and his political activities. The jury found
that Klevenhagen discriminated against Steverson on the basis of
race and retaliated against him on the basis of political
activities, that race played a part in the Commission's decision to
augment Steverson's sanction, and that Sheriff Klevenhagen had a
4
policy of discriminating against African Americans. But it also
found that the policy was not a moving force in the violation of
Steverson's constitutional rights. The jury awarded Steverson
compensation in the amount of $200,655.
II.
The County2 contests the jury's award of damages as founded on
erroneous legal reasoning and as supported by inadequate evidence.
The district court's conclusions of law and the jury's findings of
fact provide various independent bases for affirming the judgment.
We will affirm the judgment if any of these bases enjoys an
adequate support in fact and law.3 Because the County did not move
for a directed verdict on its own behalf or on behalf of Sheriff
Klevenhagen, we will affirm if any evidence supports the jury's
verdict.4 Finally, we will avoid the conclusion that the jury's
2
We will refer to the defendants collectively as the
County, except where we must distinguish among them.
3
See Olney Sav. & Loan Ass'n v. Trinity Banc Sav. Ass'n,
885 F.2d 266, 271 (5th Cir. 1989) (noting that affirmance is
appropriate "when the reviewing court can be reasonably certain
that the jury did not base its verdict on an unsound theory")
(citations and internal quotation marks omitted).
4
Bunch v. Walter, 673 F.2d 127, 130-31 (5th Cir. 1982)
(citation and internal quotation marks omitted) (allowing
affirmance of jury verdict on any evidence where party failed to
move for directed verdict). Counsel for the County did move for
a directed verdict in regard to several defendants in their
individual capacities, but the record does not indicate a motion
for a directed verdict on behalf of Sheriff Klevenhagen or the
County. Steverson asserts that the County did not move for a
directed verdict, and the County does not claim otherwise.
5
findings conflict with one another, if the facts of the case
permit.5
III.
The County first argues on appeal that the district court
erred in its conclusion that the Civil Service Commission violated
Steverson's rights to due process and equal protection. The court
based this conclusion on the language of the Harris County
Sheriff's Department Civil Service Regulations and the manner in
which the Commission implemented those regulations. The
regulations empowered the Commission to "modify" disciplinary
actions in response to an appeal by an employee. The court
interpreted the regulations as not allowing the Commission to
augment a disciplinary action. It also noted that Steverson
received no notice that an appeal could result in an increased
sentence, and that Steverson's was the first and only case among
several hundred appeals in which the Commission increased a
sentence. We need not assess the County's arguments that the court
erred in its analysis because the jury verdict provides adequate
alternative grounds for affirmance.
The jury found that race played a part in the Commission's
treatment of Steverson.6 The County contests the jury's finding of
5
See Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir.
1973)("The Seventh Amendment requires that if there is a view of
the case which makes the jury's answers consistent, the court
must adopt that view and enter judgment accordingly."). See also
Nance v. Gulf Oil Corp., 817 F.2d 1176, 1178 (5th Cir. 1987).
6
The County does not argue on appeal that the jury failed
to find that racial discrimination was a sufficiently strong
motive to satisfy 42 U.S.C. § 1983. We therefore do not address
6
racial discrimination only on the grounds of inadequate evidence.
Our inquiry is limited to whether there is any evidence to support
the jury's verdict under 42 U.S.C. § 1983. There is. The
Commission took an unprecedented step in increasing, rather than
decreasing or leaving intact, Steverson's punishment. The original
sanction of Steverson stemmed from a racial conflict and, the jury
concluded, race played a part in the Sheriff's and then the
Commission's decision to affirm it. Steverson can recover for the
harm he suffered because of the Commission's actions. We need not
decide more.
The County also argues that the district court erred by
applying retroactively the 1991 Amendments to the Civil Rights Act,
and by allowing Steverson to proceed under 42 U.S.C. §§ 1981 and
1983 on his claim of retaliation for his Title VII class action
suit. We need not address these assertions because, regardless of
their merit, the jury's findings require affirmance.7 Klevenhagen
acknowledged that he was aware that Steverson backed Klevenhagen's
opponent, J.C. Mosier, in the race for Sheriff of Harris County.
Klevenhagen was present at a meeting that Steverson attended in
the issue.
7
But see Landgraf v. USI Film Products, 114 S. Ct. 1483(1994) (holding that 1991 Civil Rights Act jury trial and
compensatory damages provisions do not apply retroactively); Irby
v. Sullivan, 737 F.2d 1418, 1429 (5th Cir. 1984) (holding that 42
U.S.C. § 1983 does not provide claim based on retaliation against
party for suit under Title VII, but that 42 U.S.C. § 1981 does);
Carter v. South Cent. Bell, 912 F.2d 832, 840-41 (5th Cir. 1990),
cert. denied, 111 S.Ct. 2916 (1991) (interpreting Patterson v.
McLean Credit Union, 491 U.S. 164, 179-80 (1989) to foreclose
claim under 42 U.S.C. § 1981 for retaliation in response to suit
under Title VII).
7
support of Mosier. Five days after Steverson spoke on a local
radio show on behalf of Mosier, Steverson received an undesirable
work assignment. Steverson testified that Klevenhagen was
responsible for the assignment. There was some evidence to support
the jury's finding that Klevenhagen retaliated against Steverson
for political activity. This finding together with the jury's
determination that racial animus was a motive for the Commission's
and Sheriff Klevenhagen's actions support the jury's verdict.
The County next contends that the district court erred in
holding it liable for Klevenhagen's actions.8 The County argues
that Klevenhagen lacked final policymaking authority and that the
punishment he meted out to Steverson, based on race and in
retaliation for Steverson's First Amendment activities, cannot
result in its liability. The County concludes that Klevenhagen's
"actions cannot be imputed to the County because he is not the
final decision maker and because of the Commission's subsequent
actions in reviewing the discipline."9
The jury found that an unconstitutional consideration informed
the County's decision to suspend Steverson for a total of ten days.
We refuse to parse this decision into affirmance of the three-day
suspension that Steverson originally received on an
8
The County does not contest its liability for the
Commission's actions.
9
The focus of the County's appeal on this point is
unclear. Because the County refers to the Commission's review of
the sheriff's actions, we interpret the County as objecting to
liability for affirming the sanctions against Steverson that the
Sheriff's Department imposed.
8
unconstitutional basis and that the County affirmed, and the
County's decision that a ten-day suspension was more appropriate.
Discretion lay with the County whether and how to sanction
Steverson. The jury and judge found that race played a part in the
County's exercise of its discretion. The County is liable.
Finally, the County seizes on the finding that the sheriff's
policy of disciplining black employees more severely than white
employees was not a moving force in the violation of Steverson's
constitutional rights. The County objects that the district court
nevertheless found disparate treatment, relying in part on an
incident involving a white deputy who, after slapping a black
sergeant, received no sanction comparable to Steverson's. The
quick answer is that the jury's determination that racial animus
motivated the County's suspension of Steverson supports the
judgment. The district court prudently added its own findings.
Although ultimately such additional findings may prove to be
unnecessary, it is wise to make them when simultaneously trying
jury and nonjury claims.
IV.
Steverson argues by cross-appeal that the court should have
instructed the jury to consider the personal liability of
Klevenhagen and other individuals on his staff for their
discriminatory and retaliatory acts. The district court held that
Klevenhagen and the other named defendants were not individually
liable because they were entitled to immunity as policymakers. At
oral argument, Steverson waived this claim, should we affirm the
9
judgment against the County.10 We dismiss the cross-appeal on
Steverson's motion.
AFFIRMED.
10
We note that a sheriff's decisions, even policy
decisions, are entitled only to qualified immunity. See, e.g.,
Colle v. Brazos County, 981 F.2d 237, 246 (5th Cir.1993). This
is so even where the sheriff's actions are attributable to a
county because the sheriff is considered a final policymaker.
Id. at 244.
10