Majeske, Carol v. City of Chicago ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1411 & 99-3639
Carol Majeske, et al.,
Plaintiffs-Appellants,
v.
City of Chicago,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 89 C 7262--George W. Lindberg, Judge.
Argued April 21, 2000--Decided July 10, 2000
Before Bauer, Kanne, and Evans, Circuit Judges.
Bauer, Circuit Judge. The plaintiffs in this
case are 83 white police officers who work for
the Chicago Police Department ("CPD") and sought,
but did not receive, promotions to the position
of detective. Plaintiffs sued the City of Chicago
for reverse discrimination claiming that the
CPD’s affirmative action plan violated their
rights because it resulted in the promotion of
African-Americans and Hispanics instead of them.
The case went to trial before a jury which made
factual findings by answering 56 special
interrogatories. After reviewing the jury’s
findings of fact, the district court entered
judgment in the City’s favor and found the
affirmative action plan constitutional.
Plaintiffs challenge this judgment, and in a
separate appeal consolidated with this one, ask
us to reverse the district court’s order
requiring plaintiffs to pay the City’s costs. We
affirm the district court in both cases.
I. Background
The facts of this case date back to 1989 when
the CPD administered a test to determine which
Chicago police patrol officers would be promoted
to the position of detective. The 1989 detective
test had two components-- the first was a written
job knowledge multiple choice test and the second
an oral examination. The CPD used the written
test to whittle down the number of patrol
officers that it allowed to take the oral exam.
A total of 3,392 applicants took the written
test, but a maximum of 650 individuals were
selected to take the oral exam. This number would
produce more than enough candidates to fill the
expected number of vacant detective positions.
The CPD also limited the number of people allowed
to take the oral exam due to space limitations at
the testing facility and concerns about
maintaining the secrecy of the test questions.
After reviewing the results of the written
exam, the CPD concluded that advancing applicants
based solely on ranking in the written test would
significantly reduce the number of African-
American and Hispanic applicants eligible for
promotion to detective. Believing that this would
expose it to liability for discriminating against
blacks and Hispanics, the CPD developed a plan to
increase the number of minorities promoted to
detective. The CPD divided all of the candidates
into three groups--white, African-American, and
Hispanic. The CPD then invited the individuals
that scored in the top 17% on the written test
from each group to take the oral exam. This
approach resulted in different cut-off scores for
members of each group. The cut-off score for
whites was 82, while Hispanic applicants advanced
to the oral exam if they scored 79 and African-
American candidates advanced if they scored a 73
or higher. Using this approach, the CPD allowed
619 applicants to take the oral examination.
On June 24, 1989, the CPD administered the oral
component of the detective test to the 619
candidates and determined final scores by
combining the written and oral scores and
weighting the two scores equally. The Department
used these final scores to create a list of
applicants that the CPD determined were eligible
for promotion to detective ("the eligibility
list"). The eligibility list ranked the
individuals based on their final composite score.
More than a year after administering the oral
test and creating the eligibility list, the CPD
promoted 64 officers to detective in August 1990.
The top 42 people on the eligibility list were
promoted to detective in rank order from the
list, but the other 22 promotions were made out
of rank order and were given to the 18 highest
scoring African-American and 4 highest scoring
Hispanic candidates. In addition to these 64
promotions, the CPD also promoted 26 patrol
officers based solely on merit.
The Fraternal Order of Police ("FOP") filed
grievances on behalf of patrol officers who had
not been promoted, claiming that the out-of-rank
and merit promotions violated the collective
bargaining agreement between the CPD and the FOP.
On October 31, 1991, an arbitrator found that the
out-of-rank detective promotions given to the
African-American and Hispanic officers violated
the collective bargaining agreement, but that the
merit-based promotions did not. In response to
the arbitration, the CPD made 37 additional
detective promotions on March 13, 1992. The
Department made these additional promotions in
rank order from the eligibility list and this
resulted in the top 90 candidates from that list
having all been promoted to detective.
Plaintiffs filed a two-count complaint in the
district court against the City of Chicago
claiming that the CPD’s promotion of African-
Americans and Hispanics out of rank order
violated their rights under the Equal Protection
Clause of the Fourteenth Amendment, actionable
under 42 U.S.C. sec. 1983. Plaintiffs also
asserted a supplemental claim that the promotions
violated the Chicago Municipal Code. Before
trial, the City stipulated that race and national
origin were factors in the promotions resulting
from the 1989 detective tests, but argued that
the CPD’s affirmative action plan was
nevertheless constitutional. Based on this
admission, the parties agreed to divide the trial
into three phases. Phase one of the trial was
limited to the question of whether the CPD’s
affirmative action plan was constitutional. The
plaintiffs agreed that if they lost the first
phase of the trial, they would not pursue the
next two phases which were to address the merit
promotions and damages.
As it turned out, the plaintiffs did lose phase
one of the trial. After hearing all of the
evidence during a lengthy trial, a jury answered
56 special interrogatories--the overwhelming
majority of which were answered in the City’s
favor. Judge Lindberg reviewed the jury’s answers
and entered judgment for the City on plaintiffs’
equal protection claim. The district court also
denied plaintiffs’ post-trial motions, dismissed
plaintiffs’ other claims pursuant to the
agreement, and entered an order requiring
plaintiffs to pay the City’s bill of costs.
Plaintiffs now appeal the judgment against them
on their equal protection claim and the order
that they pay the City’s costs.
II. Analysis
Because this case concerns actions by a local
government that were admittedly influenced by
race and national origin,/1 we must apply strict
scrutiny when reviewing the City’s affirmative
action plan. See Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 222 (1995); Billish v. City
of Chicago, 989 F.2d 890, 893 (7th Cir. 1993) (en
banc). To survive strict scrutiny, a race-based
classification must promote a compelling
governmental interest. See Contractors Ass’n of
E. Pa., Inc. v. City of Philadelphia, 91 F.3d
586, 596 (3d Cir. 1996); Wittmer v. Peters, 87
F.3d 916, 918-19 (7th Cir. 1996). It is well-
settled law in this Circuit that a governmental
agency has a compelling interest in remedying its
previous discrimination and the agency may use
racial preferencing to rectify that past conduct.
See McNamara v. City of Chicago, 138 F.3d 1219,
1221 (7th Cir. 1998); People Who Care v. Rockford
Bd. of Educ., 111 F.3d 528, 535 (7th Cir. 1997);
Wittmer, 87 F.3d at 918; Billish, 989 F.2d at
893; Milwaukee Cty. Pavers Assoc. v. Fielder, 922
F.2d 419, 421 (7th Cir. 1991). However, the
government must show real evidence of past
discrimination and cannot rely on conjecture.
McNamara, 138 F.3d at 1222.
In addition to showing hard proof of a
compelling interest, strict scrutiny requires the
government to come forward with evidence that its
affirmative action plan is narrowly tailored.
Adarand, 515 U.S. at 235. An affirmative action
plan is narrowly tailored if, as a practical
matter, "it discriminates against whites as
little as possible consistent with effective
remediation." McNamara, 138 F.3d at 1222. Once
the governmental entity has shown acceptable
proof of a compelling interest in remedying past
discrimination and illustrated that its plan is
narrowly tailored to achieve this goal, the party
challenging the affirmative action plan bears the
ultimate burden of proving that the plan is
unconstitutional. Aiken v. City of Memphis, 37
F.3d 1155, 1162 (6th Cir. 1994); Concrete Works
of Colo., Inc. v. City and Cty. of Denver, 36
F.3d 1513, 1521 (10th Cir. 1994).
Whether there is enough evidence to support a
finding of a compelling governmental interest and
thereby justify a race-conscious action is a
question of law that we review de novo.
Contractors Ass’n of E. Pa., 91 F.3d at 596;
Concrete Works of Colorado, 36 F.3d at 1522.
Similarly, we apply plenary review to the issue
of whether the City’s affirmative action plan was
narrowly tailored. Contractors Ass’n of E. Pa.,
91 F.3d at 596. Finally, since the City prevailed
at trial, we will view the facts in the light
most favorable to the City and draw all
reasonable inferences in its favor. See McNamara,
138 F.3d at 1223.
A. Compelling Governmental Interest
During trial, the City presented persuasive
statistical evidence that past discrimination by
the CPD in the hiring and promotion of African-
American and Hispanic police officers reduced the
number of black and Hispanic detectives on the
police force in 1989. Rather than restate the
extensive statistical data presented at trial, we
will simply summarize the highlights of that
evidence. Dr. Charles Mann, who qualified as an
expert in statistics and the statistical analysis
of employment matters, testified that he examined
the CPD’s racial composition, hiring, and
promotion practices from 1950 through 1991. Using
the total number of blacks and Hispanics in the
available work force, as well as the number of
blacks and Hispanics in the patrol officers’
ranks at the CPD, Dr. Mann’s study showed that
the CPD’s past hiring of African-Americans and
Hispanics was substantially lower than it
statistically would have been indicated. Dr. Mann
testified that past promotions of African-
Americans and Hispanics to detective were also
substantially below what statistical analysis
predicted. Dr. Mann created a statistical model
to predict the expected number of African-
American and Hispanic detectives there would have
been in the CPD absent past discrimination. Based
on this model, Dr. Mann calculated that in 1989
there should have been 221 African-American
detectives, but there were only 57. Similarly,
Dr. Mann testified that under his analysis there
should have been approximately 43 Hispanic
detectives, but a count revealed there were only
9. Dr. Mann testified that the low number of
black and Hispanic detectives was caused by the
CPD’s past discrimination in hiring and promotion
of these two groups.
The jury also heard testimony from several
minority witnesses who told of past
discrimination they experienced while working for
the CPD. These individuals testified about the
CPD’s past use of pretextual medical excuses such
as flat feet and heart murmurs to disqualify
African-Americans from becoming police officers.
The jury learned about the CPD’s past use of
invalid height and weight requirements to exclude
Hispanic applicants from joining the police
force. In the event that the CPD did hire an
African-American, those officers were assigned
exclusively to African-American neighborhoods and
were forbidden from patrolling white
neighborhoods or arresting white suspects.
African-American officers received the most
menial jobs even though they were trained to
perform tasks involving much higher degrees of
responsibility. For example, one black officer
trained to investigate traffic accidents was
relegated to directing traffic and another black
patrol officer who was qualified for desk duty
was assigned to starting cars. African-American
officers received artificially low efficiency
ratings compared to their white colleagues and
were frequently transferred without notice.
African-American employees of the CPD also told
the jury about the climate of racial hostility
and segregation they endured on the job. The
washroom walls were covered with offensive,
racist, and threatening graffiti, and CPD
supervisors took no action to correct the
problem.
After hearing the statistical and anecdotal
evidence of discrimination, the jury was given a
special verdict form pursuant to Rule 49(a) of
the Federal Rules of Civil Procedure. The verdict
form contained 56 questions, of which the jury
answered "yes" to the following critical
interrogatories:
Did the City present evidence to support its
claim that, in the decades prior to the 1989
detective examination, black police officers were
subject to intentional, unfavorable treatment in
assignments (for example, segregated beats,
restricted duties, and unfair efficiencies)?
Did the City present evidence to support its
claim that, in the decades prior to the 1989
detective examination, black and Hispanic police
officers were subject to intentional, unfavorable
treatment in hiring (for example, in the use of
medical and entrance qualifications)?
Did the City present evidence to support its
claim that, in the decades prior to the 1989
detective examination, supervisors (for example,
sergeants, lieutenants, commanders etc.) in the
Police Department acted in ways that were hostile
to black and Hispanic police officers?
Did the City present evidence to support its
claim that, in the decades prior to the 1989
detective examination, the Police Department
tolerated acts of hostility directed towards
black and Hispanic police officers?
Did the City present evidence to support its
claim that in 1990 the percent of black and
Hispanic officers in the detective rank was
significantly lower than the percent of black and
Hispanic officers in the patrol officer rank?
Did the City present evidence to support its
claim that it was very unlikely that there would
have been as few black and Hispanic detectives in
1990 if blacks and Hispanics had been hired onto
the police force and promoted to detective in the
same manner as whites?
Did the City present evidence to support its
claim that there would have been at least 18 more
black detective and 4 more Hispanic detectives in
1990 if blacks and Hispanics had been hired onto
the police force and promoted to detective in the
same manner as whites?
Did the City present evidence to support its
belief that the under representation of black and
Hispanic detectives was due, at least in part, to
the Police Department’s prior unfavorable
treatment of black and Hispanic officers or
persons?
Did the City present evidence to support its
claim that use of three different cut-scores
helped to address the lingering effects of the
Police Department’s prior discriminatory
practices by providing an opportunity for a
greater number of black and Hispanic officers to
compete for a spot as detective?
Along with each of these questions, the verdict
form posed a question asking the jury whether the
plaintiffs had proved the opposite proposition by
a preponderance of the evidence. In response to
each of those questions, the jury said "no."
Based on the evidence presented at trial and
the jury’s factual findings, we agree with the
district court that there was sufficient proof of
past discrimination by the City to warrant the
affirmative action plan in this case. The
statistical proof revealed that past
discrimination significantly lowered the number
of African-Americans and Hispanics that were
promoted to detective through the years.
Similarly, the jury heard extensive testimony
from former minority members of the CPD about the
discriminatory practices the CPD used to keep
blacks and Hispanics from being hired into the
department; and, if a minority did manage to get
a job, how they were prevented from advancing
within the CPD. We have previously held that this
combination of persuasive statistical data and
anecdotal evidence adequately establishes a
compelling governmental interest that justifies
an affirmative action plan, see McNamara, 138
F.3d at 1223-24, and we do so again in this case.
The only credible argument plaintiffs advance to
suggest that there was not enough evidence of
past discrimination to warrant the affirmative
action plan is based on two answers the jury gave
to special interrogatories. Specifically, the
jury answered "no" to the following two
questions:
Did the City present evidence to support its
claim that, in the decades prior to the 1989
detective examination, black police officers were
subject to intentional, unfavorable treatment in
assignments (for example, segregated beats,
restricted duties, and unfair efficiencies) and
that this caused black police officers to be
excluded from the opportunity to become
detectives?
Did the City present evidence to support its
claim that, in the decades prior to the 1989
detective examination, supervisors (for example,
sergeants, lieutenants, commanders etc.) in the
Police Department acted in ways that were hostile
to black and Hispanic police officers and that
this caused black and Hispanic officers to be
excluded from the opportunity to become
detectives?
According to plaintiffs, the negative responses
to these two questions show that the jury
rejected the City’s evidence that past
discrimination was the reason for the unusually
low number of African-American and Hispanic
detectives.
We are not persuaded by plaintiffs’ argument.
The most compelling reason to reject this
argument is that, in other questions, the jury
specifically said that past discrimination had
reduced the number of African-American and
Hispanic detectives at the CPD. The jury
responded "yes" to the following three questions:
Did the City present evidence to support its
claim that it was very unlikely that there would
have been as few black and Hispanic detectives in
1990 if blacks and Hispanics had been hired onto
the police force and promoted to detective in the
same manner as whites?
Did the City present evidence to support its
claim that there would have been at least 18 more
black detective and 4 more Hispanic detectives in
1990 if blacks and Hispanics had been hired onto
the police force and promoted to detective in the
same manner as whites?
Did the City present evidence to support its
belief that the under representation of black and
Hispanic detectives was due, at least in part, to
the Police Department’s prior unfavorable
treatment of black and Hispanic officers or
persons?
The jury’s answers to these three questions are
at odds with its responses to the previous two
interrogatories. When a jury returns a special
verdict that contains contradictory answers, "we
should do what we can to save the verdict against
the spectre of inconsistency." American Gas Co.
v. B. Cianciolo, Inc., 987 F.2d 1302, 1306 (7th
Cir. 1993). Therefore, if there is a reasonable
way to interpret the jury’s verdict that resolves
the inconsistency, the verdict must be construed
in that manner. Freeman v. Chicago Park Dist.,
189 F.3d 613, 615 (7th Cir. 1999) (quoting
Gallick v. Baltimore & Ohio R.R. Co., 372 U.S.
108, 119 (1963)).
As the district court held, the inconsistency
in this verdict can be reconciled. The two
questions relied on by plaintiffs asked whether
the CPD’s prior acts of discrimination "caused
black [and Hispanic] police officers to be
excluded from the opportunity to become
detectives?" Because these questions asked
whether discrimination "caused black [and
Hispanic] police officers to be excluded" rather
than whether discrimination "caused some black
[and Hispanic] police officers to be excluded,"
the jury could have reasonably interpreted the
questions to ask whether the CPD’s prior
discrimination categorically prevented all black
and Hispanic police officers from ever having the
opportunity to become detectives. While this is
a reasonable interpretation of these questions,
this notion was contradicted by undisputed
evidence at trial which clearly demonstrated that
some blacks and Hispanics were promoted to
detective before the 1989 detective test.
Accordingly, if the jury construed these two
questions as asking whether the CPD completely
precluded minorities from becoming detectives,
then the jury’s answer of "no" is logical and
supported by the evidence.
When construed in this manner, the answers to
these two questions are entirely consistent with
the jury’s opposing responses to the later three
questions. These three questions could not be
construed as asking whether past discrimination
completely prevented all blacks and Hispanics
from ever becoming detectives. Instead, they
focused on the actual and measurable impact
previous discrimination had on the number of
African-American and Hispanic detectives on the
police force. For example, one question asked
whether previous discrimination made it "very
unlikely that there would have been as few black
and Hispanic detectives in 1990." Another asked
whether, absent the previous discrimination,
"there would have been at least 18 more black
detectives and 4 more Hispanic detectives in
1990." The other question posed the issue of
whether prior discrimination caused "the under
representation of black and Hispanic detectives."
The jury responded affirmatively to each of these
questions and therefore concluded that previous
discrimination did reduce the number of black and
Hispanic detectives at the CPD. Because the
jury’s responses to the special interrogatories
can be reasonably viewed as consistent, we reject
plaintiffs’ argument.
B. Narrow Tailoring
To determine whether an affirmative action plan
is narrowly tailored, the test we use is whether
the racially preferenced measure is "a plausible
lower-bound estimate of a shortfall in minority
representation" that is caused by past
discrimination. McNamara, 138 F.3d at 1224. The
statistical evidence credited by the jury at
trial indicates that the CPD’s affirmative action
plan was a modest solution to a history of
discrimination that caused a significant under
representation of minorities in the ranks of
detectives. In 1989, there were only 57 African-
American and 9 Hispanic detectives at the CPD.
Dr. Mann predicted that, given the appropriate
labor pool and absent past discrimination, there
would have been 221 black and 43 Hispanic
detectives on the police force in 1989. Thus, the
detective ranks at the CPD have been under
represented by 164 black detectives and 34
Hispanic detectives. Considering these alarming
disparities, the City’s promotion of only 18
blacks and 4 Hispanics to detective easily
satisfies our requirement that an affirmative
action remedy reflect a reasonable low-end
estimate of the number of minorities affected by
past discrimination.
Aside from the stark numbers, the record
contains other evidence which illustrates that
the CPD’s affirmative action plan was narrowly
tailored. See United States v. Paradise, 480 U.S.
149, 171 (1987) (plurality opinion listing
factors to consider when determining whether an
affirmative action plan is narrowly tailored).
First, the necessity for this affirmative action
was firmly rooted in both the anecdotal and
statistical evidence adduced at trial. The CPD
had discriminated in hiring and promotion against
blacks and Hispanics in the past and failure to
use out of rank promotions in 1990 would have
simply perpetuated minority under representation
caused by past discrimination. The CPD employed
this remedial measure for only one detective
promotion and the preferences had a minimal
impact on white officers. The evidence showed
that using different cut-off scores on the
written exam affected less than 5% of the white
candidates who took the test and did not prevent
any white officer from receiving a future
promotion. In fact, all 22 white officers who
were affected by the out-of-rank promotions were
later promoted to detective and received back
pay. In view of these facts and the statistical
evidence, we find ample proof to sustain the
district court’s finding that the CPD’s
affirmative action plan was narrowly tailored./2
C. Costs
After prevailing at trial, the City filed its
amended bill of costs seeking $53,302 in costs
but plaintiffs contested that amount and filed a
motion to review the bill of costs. The district
court reduced the amount of costs by $15,149 and
awarded the City a total of $38,153 for its
litigation costs. Plaintiffs now challenge the
district judge’s order. Two of plaintiffs’
arguments merit our attention.
Rule 54(d) of the Federal Rules of Civil
Procedure provides that "costs other than
attorney’s fees shall be allowed as of course to
the prevailing party unless the court otherwise
directs." Taxing costs against a losing party
requires two inquiries: (1) whether the cost
imposed on the losing party is recoverable and
(2) if so, whether the amount assessed for that
item was reasonable. See Weeks v. Samsung Heavy
Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.
1997). "[W]e review carefully whether an expense
is recoverable, but when we determine that it is,
we defer to the district court, which is in the
best position to determine the reasonableness of
the cost." SK Hand Tool Corp. v. Dresser Indus.,
Inc., 852 F.2d 936, 943 (7th Cir. 1988). If there
is statutory authority for taxing a specific
cost, "we will not overturn a district court’s
decision that the cost was necessary to the
litigation or its determination of what amount is
reasonable absent a showing of clear abuse of
discretion." Weeks, 126 F.3d at 945. We review an
award of costs bearing in mind that there is a
heavy presumption in favor of awarding costs to
the prevailing party. See M.T. Bonk Co. v. Milton
Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991);
Congregation of the Passion, Holy Cross Province
v. Touch, Ross & Co., 854 F.2d 219, 222 (7th Cir.
1988).
Plaintiffs first contend that the district court
erroneously awarded the City more than $22,000 to
cover the costs of obtaining daily trial
transcripts and transcripts from other court
proceedings. According to plaintiffs, these costs
were not appropriate because the City obtained
the transcripts solely "for the convenience of
counsel."
A court may tax as costs the "fees of the court
reporter for all or any part of the stenographic
transcript necessarily obtained for use in the
case." 28 U.S.C. sec. 1920(2). We have long
recognized that this includes trial transcripts
and transcripts from other court proceedings
necessarily obtained for use in the case. Weeks,
126 F.3d at 945; SK Hand Tool Corp., 852 F.2d at
943-44; State of Illinois v. Sangamo Constr. Co.,
657 F.2d 855, 867 (7th Cir. 1981); Wahl v.
Carrier Mfg. Co., Inc., 511 F.2d 209, 217 (7th
Cir. 1975). While the determination of necessity
must be made in light of the facts known when the
transcript was requested, the introduction of
testimony from a transcript is not a prerequisite
for finding that it was necessary. See Cengr v.
Fusibond Piping Sys., Inc., 135 F.3d 445, 455
(7th Cir. 1998); Hudson v. Nabisco Brands, Inc.,
758 F.2d 1237, 1243 (7th Cir. 1985). And,
although "courts may not tax the costs of
transcripts . . . provided merely for the
convenience of the requesting attorney," Barber
v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993), a
transcript need not be "absolutely indispensable
in order to provide the basis of an award of
costs." Id. Whether a party obtained a transcript
out of convenience or necessity for use in the
case is a question of fact that we will not
disturb absent clear error. Callicrate v.
Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th
Cir. 1998); Weeks, 126 F.3d at 945;10 James
William Moore, Moore’s Federal Practice, sec.
54.103[3][e] (3d ed. 1998).
Plaintiffs claim that the district court erred
in its factual determination that the City
obtained the transcripts necessarily for use in
the case rather than for the convenience of its
lawyers. While the district court’s order does
not explicitly find that the City obtained
transcripts for use in the case, the facts before
the trial court amply support this conclusion.
The City told the district court that it used the
transcripts to record the court’s oral rulings
before and during trial, to prepare pre-trial and
trial memoranda, to prepare direct examination
questions for its witnesses, to anticipate cross-
examination questions, to cross-examine
plaintiffs’ witnesses, to draft its post-trial
briefs, and to respond to plaintiffs’ post trial
motions. The district court must have known that
the City actually used these transcripts for the
case as the City attached hundreds of pages of
the transcripts to memoranda filed with the
district court. Because the district court was
necessarily aware of facts which illustrate that
the City obtained the transcripts for use in the
case, we find no error in the district court’s
decision to award the City its costs for trial
transcripts./3
Plaintiffs also challenge the costs levied for
the City’s out-of-town witnesses’s hotel rooms
and travel expenses. In support of this argument,
plaintiffs say that the costs imposed are ones
"which the statute does not allow." Contrary to
plaintiffs’ position, there is statutory
authorization for these costs. Collectively, 28
U.S.C. sec.sec. 1821 and 1920(3) authorize the
award of costs to reimburse witnesses for their
reasonable travel and lodging expenses. Holmes v.
Cessna Aircraft Co., 11 F.3d 63, 64-65 (5th Cir.
1994); Barber, 7 F.3d at 645; Chicago College of
Osteopathic Med. v. George A. Fuller Co., 801
F.2d 908, 910 (7th Cir. 1986). Plaintiffs’
argument on this point is therefore inaccurate.
It appears that plaintiffs probably intended to
assert that the costs taxed against them were
unreasonable, but they lose on this point, too.
The district court expressly found the costs for
these witnesses to be reasonable and the
plaintiffs have failed to show us any reason why
that determination constitutes an abuse of
discretion./4
III. Conclusion
The decisions of the district court in both
appeals are affirmed.
/1 Although the City’s actions in this case favored
African-Americans because of their race and
Hispanics because of their national origin, we
will use the term "race" to refer to both groups;
governmental preferences based on either race or
national origin are subject to the same analysis.
See Billish v. City of Chicago, 989 F.2d 890, 893
(7th Cir. 1993).
/2 We have considered the other arguments raised in
plaintiffs’ brief but find them unworthy of
discussion other than to say that we find no
reversible error in the district court’s rulings.
/3 Plaintiffs also complain that the City did not
need to obtain transcripts of the entire trial on
a daily basis, which is more expensive than
getting the transcript a few days later. This
argument fails because the City established that
it obtained the transcripts for use during the
trial. Moreover, several courts have taxed the
cost of daily transcripts where, in cases like
this one, the trial was lengthy and complex. See
Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64
(5th Cir. 1994) (per curiam); Galella v. Onassis,
487 F.2d 986, 999 (2d Cir. 1973); A.B.C. Packard,
Inc. v. General Motors Corp., 275 F.2d 63, 75
(9th Cir. 1960); United States v. Davis, 87 F.
Supp.2d 82, 88 (D.R.I. 2000); EEOC v. Sears,
Roebuck and Co., 114 F.R.D. 615, 622 (N.D. Ill.
1987).
/4 Plaintiffs also challenge the district court’s
imposition of costs for photocopies, exhibits,
and expenses related to the City’s affirmative
defenses. Having reviewed the record, we find no
error in the district court’s decision to tax
these costs. Similarly, we are not persuaded by
plaintiffs’ argument that the district court
applied an incorrect burden of proof because any
such error was harmless.