Alexander v. Fulton County

[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., 635 F.2d 501, 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., 161 F.3d 1318, 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., 49 F.3d
1490, 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, 30 F.3d 1390, 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, 457 U.S. 800, 818 (1982). “For the
10
Qualified immunity is an affirmative defense which must be pled by the defendant. Gonzalez
v. Lee County Housing Auth., 161 F.3d 1290, 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, 40 F.3d 1176, 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, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc) (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523(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., 115 F.3d 821, 823 (11th Cir. 1997) (en banc) (quoting
Lassiter, 28 F.3d at 1150)).
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, 117 F.3d 1318, 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. Id.17
On 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, 45
F.3d 402, 407 (11th Cir. 1995); Yeldell v. Cooper Green Hosp., Inc., 956 F.2d
1056, 1064 (11th Cir. 1992) (citing Washington v. Davis, 426 U.S. 229, 239-41, 96
S. Ct. 2040, 2047-48, 48 L. Ed. 2d 597 (1976)); Busby v. City of Orlando, 931
F.2d 764, 775 (11th Cir. 1991) (same); Brown v. City of Ft. Lauderdale, 923 F.2d
1474, 1478 (11th Cir. 1991) (same).
Sheriff Barrett, however, relying on Foy v. Holston, 94 F.3d 1528 (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.” Id. at 1536.
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, 126 F.3d 1372, 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, 904 F.2d 572, 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, 411 F.2d 365, 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., 453 U.S. 247, 258-61, 101 S. Ct. 2748, 2755-56, 69 L.Ed.2d 616 (1981);
Healy v. Town of Pembroke Park, 831 F.2d 989, 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, 62 F.3d 1316, 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, 473 U.S. 154, 166, 105 S. Ct. 3099, 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, 482 F.2d 1093, 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., 79 F.3d 1086, 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, 661 F.2d 1206, 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., 497 F.2d 1330, 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);
Grayson, 79 F.3d at 1097. 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, 383 U.S. 715, 724, 86 S.Ct. 1130, 1137, 16 L.Ed.2d 218 (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 Mosley, 497 F.2d at 1333. 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, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750 (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.”
Mosley, 497 F.2d at 1333. 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. Mosley, 497 F.2d at 1332. 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.”
Id. at 1334. 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” Id. at 1333-34 (quoting United States v. Mississippi,
380 U.S. 128, 142, 85 S.Ct. 808, 815-16, 13 L.Ed.2d 717 (1965)). See also
Blesedell v. Mobile Oil Co., 708 F. Supp. 1408, 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., 86 F.R.D. 4, 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, 82 F.R.D. 379, 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 Mosley, 497 F.2d at 1334. Several courts have found
that the question of the discriminatory character of Defendants’ conduct can satisfy
25
the commonality requirement of Rule 20. See Mosley, 497 F.2d at 1334 (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. Grayson, 79 F.3d at 1095-96(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, 136 F.3d 239, 247 (2d Cir. 1998); Williams v.
The Nashville Network, 132 F.3d 1123, 1130 (6th Cir. 1997), different supervisors
make the challenged decisions, see, e.g., Annis, 136 F.3d at 246-47; Williams, 132
F.3d at 1130; Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1221 (5th Cir. 1995),
or the alleged discrimination happens at geographically removed places, see, e.g.,
Williams, 132 F.3d at 1130; Mooney, 54 F.3d at 1221. 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 Mosley, 497 F.2d at
1334; Blesedell, 708 F. Supp. at 1422.
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 order
27
F.3d at 1097. 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, 956 F.2d
1112, 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, 467 U.S. 867,
876, 104 S. Ct. 2794, 2799, 81 L. Ed. 2d 718 (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, 431 U.S. 324,
29
336, 97 S. Ct. 1843, 1855, 52 L. Ed. 2d 396 (1977)); Mooney, 54 F.3d at 1221(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 Teamsters, 431 U.S. at 336, 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, 30 F.3d 1539, 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, 956 F.2d
1027, 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, 921 F.2d 1569, 1578 (11th Cir. 1991); United States v.
Perlstein, 120 F.2d 276, 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, 105 F.3d 1339, 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., 177
F.3d 1272, 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, 77 F.3d 1325, 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, 614 F.2d 1322, 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, 664 F.2d 435 (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., 488 U.S. 469,
501, 109 S.Ct. 706, 726, 102 L.Ed.2d 854 (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, 433 U.S. 299, 308 n.13, 97 S. Ct. 2736, 2742 n.13, 53
L.Ed.2d 768 (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 Teamsters, 431 U.S. at 338 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, 26
F.3d 1545, 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, 89 F.3d 1562, 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., 122 F.3d 997, 1005 (11th
Cir. 1997) (citation omitted). See also Nettles v. Electrolux Motor AB, 784 F.2d
1574, 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, 117 F.3d 480, 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., 630 F.2d 250, 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 LaSpesa, 956 F.2d at 1032; United States v. Nixon,
918 F.2d 895, 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., 125 F.3d 1406, 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 id. On appeal, 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.” Carter, 122 F.3d at 1005(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 discussion supra sections III-B
and III-D.
46
error has been committed. Bateman v. Mnemonics, Inc., 79 F.3d 1532, 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.’” Carter, 122 F.3d at 1005 (quoting Johnson
v. Bryant, 671 F.2d 1276, 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, 755 F.2d 1516, 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., 19 F.3d 586, 589 n.8
(11th Cir. 1994) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455 (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, 823 F.2d 1476, 1492 (11th Cir. 1987) (citing Oatis v. Crown
Zellerbach Corp., 398 F.2d 496, 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,” id. (citing Oatis, 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.’” Forehand, 89 F.3d at 1566 n. 8 (quoting Jackson v. Seaboard
Coast Line R.R., 678 F.2d 992, 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, 823 F.2d 1476, 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., 731 F.2d 175, 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, 527 U.S. 581, 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, 450 U.S. 248, 258, 101 S. Ct. 1089, 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, 87 F.3d 1261, 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, 874 F.2d 1534,
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., Osram, 87 F.3d at 1265; Gerwens, 874 F.2d at1540-41 & 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, 524 U.S. 775 ,
793 , 118 S.Ct. 2275, 2286, 141 L.Ed.2d 662 (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, 524 U.S. 742, 754, 118
S.Ct. 2257, 141 L.Ed.2d 633 (1988) (explaining that “Congress has directed
federal courts to interpret Title VII based on agency principles”); Sparks v. Pilot
Freight Carriers, Inc., 830 F.2d 1554, 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, 742 F.2d 586, 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, 106 F.3d 1519, 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, 58 F.3d 1554, 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., 678 F.2d 1053, 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, 71 F.3d 801, 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.'" Richardson, 71 F.3d at 806
(quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715,
103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (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,’” Combs, 106 F.3d at 1539 n.11(quoting Aikens,
460 U.S. at 715, 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 id.Ultimately, we 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., 172 F.3d 786, 792 (11th Cir. 1999); Holifield
v. Reno, 115 F.3d 1555, 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 Burdine, 450 U.S. at 254-55; Lathem, 172 F.3d at 793.
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
Burdine, 450 U.S. at 256; Lathem, 172 F.3d at 793; Combs 106 F.3d at 1529-38.
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 said. In addition,
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., 527 U.S. 526,
119 S.Ct. 2118 (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. Kolstad, 119 S.Ct. at 2124. 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. Id. at 2124. 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. Id. at 2124-25.27 At a minimum, the Court explained,
26
Title VII’s punitive damages provision was based on §§ 1983 and 1981 standards. See, e.g.,
Kolstad, 119 S.Ct. at 2124; Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278 (5th Cir.
1999)
27
The Supreme Court in Kolstad relied primarily on its earlier case of Smith v. Wade, 461 U.S.
30 (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.” Id. at 37 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.” Id. at 2125.
The Supreme Court emphasized that this standard of liability is higher than
that for establishing a right to compensatory damages. Id. at 2124. 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.” Id. at 2124. 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
Id. at 2125. 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, 175 F.3d 861, 866 (11th Cir. 1999) (citing Wu
v. Thomas, 847 F.2d 1480, 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 Wu, 847
F.2d at 1483-84. 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 id.In a 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.” Combs, 106 F.3d at 1543. See also Damon v. Fleming
Supermarkets of Florida, Inc., 196 F.3d 1354, 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., 164 F.3d 277 (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, 158 F.3d 1177,
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 Burdine, 450 U.S. at 258-59). See also
Taylor, 175 F.3d at 868 (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
face.” 164 F.3d at 280. 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 . . . .”
Id. at 280-81. The Tenth Circuit in Simms v. Oklahoma ex rel. Dept. of Mental
Health and Substance Abuse Services, 165 F.3d 1321 (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.” Simms, 165 F.3d at 1329-30.
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, 427
U.S. 347, 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, 114 F.3d 1097, 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, 738 F.2d 1181, 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, 777 F.2d
1431, 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 discussion supra 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.” Kolstad, 119 S.Ct. at 2124. 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.” Id. at 2125. 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., 648 F.2d 950, 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 id. Finally, in order to prevail, the plaintiff must then
78
establish that the defendant’s asserted reasons are simply a pretext for racial
discrimination. See id. at 956. 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 discussion supra 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., 153 F.3d 1308, 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, 115 F.3d 1555, 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., 40
F.3d 11, 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., 964 F.2d 577, 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 Holifield, 115 F.3d at 1562.
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 Burdine, 450 U.S. at 253, 101 S.Ct. at
1093, 67 L.Ed. 207 (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 Holifield, 115
F.3d at 1565; Karazanos v. Navistar Int’l Trasp. Corp., 948 F.2d 332, 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 discussion
supra 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.
92
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, 116 F.3d 1396, 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
93
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.
94
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.
96