Opinion
Civil Action No. 96-0679, c/w 97-2523, Section: "J"(5)
June 26, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW LIABILITY
Civil Action 96-679, Charles Albright, et al. v. City of New Orleans. et al., is one of several suits filed by white New Orleans police officers who challenged the promotion policies of the New Orleans Police Department ("NOPD"). The Albright plaintiffs are 38 white NOPD patrolmen and sergeants who were on a list of eligibles for promotion to the ranks of sergeant and lieutenant, respectively. They allege that they were passed over for promotion in favor of black officers during a round of promotions in March 1995.
In February 1996, the Albright plaintiffs filed suit against the City of New Orleans ("the City"), Superintendent of Police Richard J. Pennington ("Superintendent Pennington"), Mayor Marc Morial, and the City's former Chief Administrative Officer Marlin Gusman [collectively "Defendants"]. In their original complaint, the Albright plaintiffs alleged that the City was in violation of the consent decree executed in 1987 following litigation of the claims in Williams v. City of New Orleans, Civil Action No. 73-629. Exhibit 1. They later sought to amend their complaint to assert the claims of intentional race discrimination currently at issue, but in January 1999, this Court dismissed those claims as time-barred. In April 1999, the remainder of the claims were tried to the Court after which judgment was rendered in favor of Defendants. Albright v. City of New Orleans, 46 F. Supp.2d 523 (E.D. La. 1999).
Plaintiffs appealed, and in November 2000, the Fifth Circuit Court of Appeals affirmed as to the issues tried but reversed the Court's finding that the intentional race discrimination claims were time-barred.Albright v. City of New Orleans, Case No. 99-30504, Nov. 1, 2000 (opinion unpublished). The case was remanded to this Court for a trial on the merits of those claims. The matter came on for trial before the Court, sitting without a jury, on April 24, 2001. Prior to trial, the parties agreed to sever the issue of liability from the issue of damages. Following the one day trial on liability, the Court took the matter under advisement.
Civil Action 97-2523, Barry Fletcher, et al. v. City of New Orleans, et al., which had been consolidated with the Albright suit prior to the April 1999 trial, was similarly remanded for trial on those plaintiffs' claims of intentional race discrimination. Following remand, the Fletcher and Albright claims were tried together at the April 24, 2001 trial, although they arose out of separate and distinct instances of alleged discrimination that occurred nearly two years apart. The Court issued its Finding of Fact and Conclusions of Law on June 1, 2001. InFletcher, the Court concluded that plaintiffs had failed to prove a case of intentional race discrimination, and on June 1, 2001, entered final judgment in favor of Defendants. 2001 WL 604176 (E.D. La. Jun. 1, 2001).
Having now considered the evidence, memoranda, arguments of counsel, and applicable law, the Court renders its Findings of Fact and Conclusions of Law in Civil Action 96-679, Charles Albright, et al. v. City of New Orleans, et al., pursuant to Federal Rule of Civil Procedure 52(a).
NOPD PROXOTIONS
Promotions among the ranks of NOPD are governed by the rules and regulations of the Civil Service Commission ("the Commission"). Officers seeking promotion to the ranks of sergeant and lieutenant take an examination administered by the Commission. The Commission then uses the results of the exam to create a promotional register or roster which ranks the passing candidates according to their performance on the exam. Superintendent Pennington then selects officers from the most recent promotional register when awarding promotions. Superintendent Pennington is the official with final decisionmaking authority as to which officers ultimately receive promotions.
At all times relevant to the claims currently before the Court, promotions to the ranks of sergeant and lieutenant were also governed by the terms of the consent decree entered into by the City and plaintiffs in Williams v. City of New Orleans, Civil Action No. 73-629. Exhibit 1. The Williams consent decree was designed in part to provide equal employment opportunity within NOPD and to eliminate any prior racial discrimination that might have existed as well as its effects. Exhibit 1, at 9. In furtherance of those goals, the Decree detailed an affirmative action program finite in duration. As part of that program, officers on the promotional rosters were grouped into "bands" according to their scores on the Commission's examination. Under the express terms of the Decree, all promotions were to be made first from the group or band with the highest scores (the lower numbered bands) until it was exhausted, and then from the group or band with the second highest scores and so forth until the list expired. The Decree provided that all candidates in a band were to be deemed of equal qualification for purposes of promotion. Exhibit 1, at 21.
Williams was a class action lawsuit brought in 1973 by black NOPD police officers. The Williams plaintiffs alleged discrimination in the hiring and promotion policies of NOPD. After years of litigation, the parties, including the City of New Orleans, entered into the Decree.
The Williams decree also created "supernumerary" or "additional" positions which could only be filled by black police officers. Promotions to these positions could be filled by a black candidate from a higher numbered band without exhausting the current band if no black officers remained in the current band. Otherwise, according to the Decree, promotions were to be made in strict accordance with the band system's exhaustion requirements. Outside of the racial preferences dictated by the Decree, the express terms of the Decree forbade the City from unlawfully discriminating on the basis of race or color against any employee of NOPD. Exhibit 1, at 10. The Decree also required the parties to seek Court approval before implementation of any procedure believed to better accomplish the affirmative action goals detailed in the Decree. Id. at 17, ¶ E.
The Court's prior opinion, published at 46 F. Supp.2d 253, contains a more detailed and comprehensive explanation of the Williams litigation and decree.
THE ALERIGHT CLAIMS
The events leading up to the Albright discrimination claims are for the most part not in dispute. In October 1994, Superintendent Pennington began his tenure with NOPD. By March 3, 1995, when the promotions at issue in this case were made, all patrolmen in Bands 1 through 4 of the sergeant's roster had already been promoted to the rank of sergeant. In Band 5, all of the black officers had been promoted leaving 34 non-black officers. Band 6 consisted of black officers and non-black officers. All supernumerary sergeant positions were filled. Thus, according to the terms of the Decree, the 34 non-black officers remaining in Band 5 had to be promoted to sergeant before any officers, including black officers, in Band 6 were promoted.
Nevertheless, on March 3, 1995, the City bypassed the 34 candidates in Band 5 to promote black officers from Band 6 to the rank of sergeant. The City accomplished this by selecting supernumerary black sergeants for promotion to the rank of lieutenant thereby freeing up several supernumerary sergeant positions. Under the terms of the Decree, the City was then able to promote black sergeant candidates from Band 6 because only black officers could fill supernumerary positions.
As for promotions to the rank of lieutenant, on March 3, 1995, all candidates in Bands 1 through 3 of the lieutenants' register had already been promoted thereby exhausting those bands. Three supernumerary lieutenant positions were vacant. Band 4 consisted of 34 officers — five of those officers were black. On March 3, 1995, the City promoted six officers from Band 4 into regular (non-supernumerary) lieutenant positions — the five black candidates were among the six who received promotions. With the promotion of the five black candidates from Band 4, the City was then able to bypass the remaining non-black officers in Band 4 to promote three black officers from Band 5 into the three vacant supernumerary positions. Thus, the City was able to promote a maximum number of black candidates by selecting black candidates from Band 4 to fill regular non-supernumerary positions.
Plaintiff Charles Albright, along with several other white eligibles for the ranks of sergeant and lieutenant, allege that the City discriminated against them on the basis of race when selecting candidates for the March 3, 1995 promotions to the ranks of sergeant and lieutenant. In particular, they allege that the City gave preference to black candidates when filling regular non-supernumerary positions in order to promote black candidates from higher bands for supernumerary positions. They seek relief pursuant to 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 1983, the Equal Protection Clause, and Louisiana's Employment Discrimination Law, La. R.S. 23:1006,et seq. Named as defendants are the City, Superintendent Pennington (official and personal capacity), Mayor Marc Morial (official and personal capacity), and Marlin Gusman, former Chief Administrative Officer for the City (official and personal capacity).
The Albright plaintiffs are: Charles Albright, III, Michael Allsbrook, Forest Austin, Bruce Bond, Sr., Pete Bowen, Samuel Bua, Anthony Caprera, John Castelluccio, David Daughtry, Dennis DeJean, John Favolora, III, Garold Fayard, Sam Gebbia, Walter Gif ford, Michael Goodeon, Stanley Hoogerwerf, Edward Hirstius, Gary Lee, Isidro Magan, Paul McCaskell, Norman McCord, Jr., Marjorie Powell, Michael Rice, John Ronguillo, Jay Saacks, Troy Savage, James Scott, Fenner Sedgebeer, David Slicho, Stephen Smegal, Leroy Smith, Jr., Larry Stokey, James W. Ward, Julie Wilson, Clifford Wood, Stephen Dunn, Michael Glasser, and Earl J. Frisard, Jr. Pre-Trial Order, at 2-4 (Rec. Doc. 244).
As noted above, the original complaint in Albright alleged that the 1995 promotions violated the stipulations to the Decree and were discriminatory due to the City's domicile ordinance. See Rec. Doc. 1. In September 1998, as a result of evidence obtained during the course of discovery, the Albright plaintiffs amended their original complaint to add the claims of intentional race discrimination that are at issue today. See Third Amended Complaint, Rec. Doc. 116, Exhibit 1.
La. R.S. 23:1006, which prohibited intentional discrimination in employment on the basis of race, was repealed after the events that gave rise to this action and was replaced by Louisiana's Employment Discrimination Law, La. R.S. 23:301, et seq. See 1997 La. Acts 1409, §§ 1-4, eff. Aug. 1, 1997. Under both versions of the law, federal courts applying Louisiana law look to federal law to interpret the meaning of Louisiana antidiscrimination statutes. Beasley v. St. Tammany Parish Sch. Bd., 1997 WL 382056 (E.D. La. Jul. 9, 1997) (citing Galbreth v. Bellsouth Telecomm., Inc., 896 F. Supp. 631 (E.D. La. 1995); Spears v. Rountree Oldsmobile-Cadillac Co., 653 So.2d 182 (La.App. 2d Cir. 1995)).
DISCUSSION
1. Applicable Law
Pursuant to Title VII, an "employer" may not discriminate in the promotional process on the basis of race. See Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994) (citing 42 U.S.C. § 2000e-2). Governments, governmental agencies, and political subdivisions qualify as "employers" under Title VII when they engage in an industry affecting commerce and employ a minimal number of individuals. See 42 U.S.C. § 2000e(a)-(b); Oden v. Oktibbeha County, 246 F.3d 458 (5th Cir. 2001). Employers found in violation of Title VII potentially face a broad array of liability including court-ordered affirmative action, damages, and attorney fees. 42 U.S.C. § 2000e-5 (g); 42 U.S.C. § 1981a (a)(1).
Although Title VII generally precludes consideration of race in employment-related decisions, a carefully formulated affirmative action plan may pass muster under some circumstances. Dallas Fire Fighters Assoc. v. City of Dallas, 150 F.3d 438, 442 (5th Cir. 1998); Birmingham Reverse Discrim. Emp. Litig. v. Arrington, 20 F.3d 1525, 1537 (11th Cir. 1994). In particular, where there is sufficient evidence to show that the plan mirrors the purpose of Title VII and does not "unnecessarily trammel" the interests of non-minority employees, the employer's consideration of race will not be in violation of Title VII. Taxman v. Board of Educ., 91 F.3d 1547, 1554-55 (3d Cir. 1996), cert. granted and dismissed, 522 U.S. 1010, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997) (quoting United Steelworkers v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L.Ed.2d 480 (1979)).
Determining whether such an affirmative action plan can survive under Title VII involves a two-part test. First, the employer's consideration of race must be justified by evidence of a "manifest racial imbalance" that reflects under-representation of minorities in traditionally segregated job categories. Arrington, 20 F.3d at 1537 (citing Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987)). Assuming that such a justification was present when the plan was developed, the court must then determine whether the plan provides an appropriate remedy for that imbalance, i.e., does not unnecessarily trammel the rights of non-minority employees or create an absolute bar to their advancement. Id. (citing Johnson, 480 U.S. at 637, 107 S.Ct. 1455).
In Title VII intentional race discrimination cases where there is no direct evidence of discrimination the Court employs the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Lawrence v. University of Tex. Med. Branch, 163 F.3d 309, 312 (5th Cir. 1999). As discussed below, the McDonnell Douglas framework is inapplicable in the instant case because Plaintiffs offered direct evidence of racial discrimination.
Public employers (municipalities) who factor race into employment decisions, however, face an even greater hurdle than Title VII because they are also bound by the Equal Protection Clause of the Fourteenth Amendment. The obligations of a public employer under Title VII and the Constitution are not identical as Title VII imposes fewer limitations on an employers' attempt to implement an affirmative action plan than does the Constitution. Taxman, 91 F.3d at 1573; Arrington, 20 F.3d at 1536 (citing Johnson, 480 U.S. at 628 n. 6, 107 S.Ct. at 1449 n. 6). All racial classifications imposed by a governmental actor must be analyzed under the "strict scrutiny" test. Messer v. Meno, 130 F.3d 130, 135-36 (5th Cir. 1997) (citing Adarand Constr., Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 721-22, 102 L.Ed.2d 854 (1989); Hopwood v. State of Texas, 78 F.3d 932, 940 (5th Cir. 1996)).
Application of strict scrutiny involves a two-part test. First, any racial classification must be justified by a compelling state interest.Police Ass'n of New Orleans (PANO) v. City of New Orleans, 100 F.3d 1159, 1167 (5th Cir. 1996) (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1989)). Second, the means used by the state to accomplish its purpose must be narrowly tailored to serve that interest. Id. (citing Fullilove v. Klutznick, 448 U.S. 448, 491 S.Ct. 2758, 65 L.Ed.2d 202 (1980)). Strict scrutiny is applied even where the challenged racial classification operates against a group not historically subject to discrimination by the government, Arrington, 20 F.3d at 1544 (citing Wygant, 476 U.S. at 273, 106 S.Ct. at 1846; Croson, 488 U.S. at 494, 109 S.Ct. at 722), and against classifications intended to be remedial as well as invidious. Dallas Fire Fighters Assoc., 150 F.3d at 440-41 (citing Croson, 488 U.S. at 469, 109 S.Ct. at 706). A governmental body has a compelling interest in remedying the present effects of past discrimination. Id. (citing Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S. Ct. 3019, 92 L.Ed.2d 344 (1986)). Plaintiff may seek redress for equal protection violations under 42 U.S.C. § 1983. See PANO, 100 F.3d at 1170., 2. Evidence Presented
Section 1983 provides in pertinent part:
Every 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 or other person within the jurisdiction thereof 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. . . .42 U.S.C.A § 1983 (West Supp. 2000).
Plaintiffs also pled a cause of action under 42 U.S.C. § 1981. Although section 1981 speaks in terms of contracts, an employer's failure to promote an employee due to race is actionable under section 1981.PANO, 100 F.3d at 1170 (citing Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)). Section 1981 does not create a separate cause of action against local government entities and does not impose personal liability against government officials. Id. at 463. Accordingly, plaintiffs must assert their substantive rights under section 1981 against persons acting under color of state law via section 1983. Oden, 246 F.3d at 462. Like section 1983, section 1981 requires a custom or policy within the meaning of Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed. 22 611 (1978), before municipal liability can attach. Evans v. City of Houston, 246 F.3d 344, 357 (5th Cir. 2001) (citing Jett, 491 U.S. at 735-36, 109 S.Ct. 2702). Section 1981 also requires proof that the denied promotion "rises to the level of an opportunity for a new and distinct relation between the employee and the employer." PANO, 100 F.3d at 1170 (quoting Patterson, 491 U.S. at 185, 109 S.Ct. at 2377).
At trial, Plaintiffs called five witnesses: Superintendent Pennington, a defendant herein, and the four NOPD deputy chiefs who served in March 1995: Carol Hewlitt, Mitchell Dusset, Ronald Doucette, and Duane Johnson.
The deputy chiefs function as assistant superintendents within NOPD. None of the deputy chiefs were named as defendants in this suit.
Superintendent Pennington testified that he joined NOPD as its Superintendent in October 1994. In late 1994 or early 1995, he reviewed various manpower reports from which he identified shortages in various ranks. Based upon those manpower reports and consultation with his staff, he decided that NOPD was in need of 21 more lieutenants and 38 more sergeants. He then asked his four deputy chiefs to recommend specific officers for those promotions. The deputy chiefs gave Superintendent Pennington lists containing the names of the officers they were recommending for promotion. Superintendent Pennington testified that he selected officers for those promotions based solely on the recommendations made by the deputy chiefs because, as a newcomer to NOPD, he was completely unfamiliar with most of the officers eligible for those ranks.
Superintendent Pennington testified that he could not recall whether the recommendations list contained the exact number of officers to be promoted or more than the number to be promoted thereby making him choose between qualified candidates.
When questioned as to the race of those officers recommended, Superintendent Pennington testified that he did not know the race of any of the officers prior to the March 3, 1995 promotion date. He also testified that none of the deputy chiefs had told him the criteria they were using to recommend candidates, and in particular, no one told him that race was a factor when selecting the candidates for promotion. Although the sergeants' promotional roster (Exhibit 3) contained numeric codes indicative of each candidate's race and gender, Superintendent Pennington stated that he was unaware of what the numeric codes meant. While he acknowledged that he was aware of the Williams decree and that it contained an affirmative action scheme, he testified that he himself had not read the Decree, was not aware of its details, and had relied upon his staff and the City Attorney's Office to advise him as to its requirements.
Former Deputy Chief Carol M. Hewlitt (retired) testified that as a deputy chief with NOPD in March 1995, she participated in making recommendations to Superintendent Pennington on the March 3, 1995 promotions to the ranks of sergeant and lieutenant. She testified that the deputy chiefs obtained the then-current promotional registers from the personnel department. She stated that the four deputy chiefs met approximately one week prior to submitting their recommendations to Superintendent Pennington. At the meeting, she said they discussed the promotional recommendations that were to be made to Superintendent Pennington. Deputy Chief Hewlitt testified that the deputy chiefs had discussed the issue of the candidates' race because of a perceived need to comply with the mandates of the Williams consent decree. She stated that the deputy chiefs specifically discussed selecting officers for promotion in such a way as to maximize the number of black officers promoted. In particular, the deputy chiefs decided that black officers should be promoted first and according to Deputy Chief Hewlitt, the recommendations given to Superintendent Pennington were consistent with that decision. Although she ultimately agreed, based upon her understanding of the Williams decree, that the black officers should be promoted first, she stated that she did voice objections to the other deputy chiefs. However, she denied that she had ever raised those objections with Superintendent Pennington or had any conversations with him regarding the method or criteria for making the recommendations prior to the March 3, 1995 promotions.
Deputy Chief Hewlitt did voice objections to Superintendent Pennington regarding the imminent promotion of one specific black male candidate. The basis of those objections was the candidate's disciplinary record.
Deputy Chief Mitchell Dusset testified that he too participated in making recommendations to Superintendent Pennington for the March 3, 1995 promotions. He stated that he was generally familiar with the Williams decree but that it was his belief that NOPD was in need of more black officers in its ranks. He stated that in March 1995, black officers comprised 40 percent of NOPD's force, however, only 20 percent of the ranking officers were black. Further, the community served by NOPD was 55-60 percent black. Deputy Chief Dussett, like Deputy Chief Hewlitt, stated that he had not discussed the method used to recommend candidates for promotion with Superintendent Pennington prior to March 3, 1995.
Captain Ronald Doucette was acting as a deputy chief in March 1995. In that capacity he participated in the recommendations for candidates for the March 3, 1995 promotions. He testified that in his opinion race didnot play a part in the promotional recommendations made by the deputy chiefs. He stated that he did consider race in so far as he knew which candidates were white and which were black but that race was not discussed at the deputy chiefs' meeting. He stated that he was familiar with the Decree, and that the deputy chiefs did discuss the Williams decree, but that he tried to make his recommendations within the confines of the Decree. He testified that it was his belief that all of the supernumerary positions had to be filled. He also denied that Deputy Chief Hewlitt had raised any objection during their meeting to race being considered in the promotional process.
Plaintiffs' last witness was Deputy Chief Duane Johnson. Deputy Chief Johnson stated he was assigned by Superintendent Pennington to make recommendations for the March 3, 1995 promotions. He stated that he was familiar with the Decree and that it was his opinion in March 1995 that NOPD needed more black officers in rank positions. He stated that the deputy chiefs did discuss race at their meeting prior to making their recommendations, and that they all agreed to promote all black officers from the lower numbered bands so as to enable them to promote the black officers from the higher bands into supernumerary positions. Like the other deputy chiefs, however, he stated that he had not discussed the method for choosing candidates for promotion with Superintendent Pennington prior to the March 1995 promotions.
The City called no witnesses of its own.
3. Analysis
Based upon the foregoing testimony, there is no dispute but that race was not only taken into consideration when selecting candidates for promotion but played a significant role. Deputy Chiefs Hewlitt, Dussett, and Johnson all candidly admitted that racial considerations prompted them to select specific candidates for promotion when making recommendations to Superintendent Pennington. In particular, all testified that they either believed that the Williams decree itself required them to give preference to black officers or that NOPD and the community as a whole would benefit from having an NOPD with ranking officers more reflective of the racial makeup of the community being served. They also testified that they had openly discussed their plan to give preference to black officers when they met just prior to March 3, 1995. While Deputy Chief Doucette's testimony was in conflict with that of the other three deputy chiefs, the Court gives credence to the version of events recounted by Deputy Chiefs Hewlitt, Dussett, and Johnson because their testimony offers a logical explanation of what in fact occurred in this case: For both ranks at issue, black candidates were selected for promotion in such a way as to allow the City to bypass white officers in lower numbered bands in order to promote black officers in higher bands to supernumerary positions.
One undisputed point, however, is that Superintendent Pennington was unaware that the deputy chiefs had considered race first and foremost when making their recommendations to him. All four deputy chiefs testified that they had no discussions with Superintendent Pennington prior to the promotions that would have put him on notice that race was being used to select candidates for promotion. Nor was there any evidence offered that the racial preferences employed by the deputy chiefs were known to others outside of their group. Rather1 the evidence presented supported Superintendent Pennington's assertion that he had relied completely on the recommendations made by the deputy chiefs and deferred to their judgment as to who should be promoted.
Having concluded that race factored into the recommendations for promotion on March 3, 1995, the issue now becomes whether those racial considerations were permissible under either Title VII or the Constitution. Notwithstanding that race played a role pursuant to laudable goals and perhaps some misinformation as to requirements of theWilliams decree, as opposed to racial ammus and invidious discrimination, the Court concludes, nevertheless, that the City's actions were permissible under neither Title VII, the Constitution, or the Williams decree.
Although Title VII's proscription on racial preferences is not absolute in that it allows for a properly constructed affirmative action plan, the Court notes first of all that there is no "plan" here for the Court to evaluate. Rather, the deputy chiefs, based upon a desire to do what they thought best for NOPD and the community, set out to promote black officers in preference to white officers on March 3, 1995. In fact, the only "plan" of which evidence was introduced was the Williams decree itself but the Williams decree expressly forbade any consideration of race in promotional decisions aside from those specifically sanctioned in the Decree. See Exhibit 1, at 9-10. It is undisputed that the racial preferences at issue here were not part of the Williams decree, and given the Decree's proscription on racial discrimination, were in fact contrary to the mandates of the Decree. Thus, the March 3, 1995 promotions cannot pass muster under Title VII as having been made pursuant to a legitimate affirmative action plan. Therefore, in addition to having violated the Decree, the March 3, 1995 promotions also violated Title VII.
Nevertheless, assuming arguendo that the consensus reached by the four deputy chiefs to add more black officers to NOPD's ranks could be categorized as some sort of affirmative action plan, the City, which bore the burden of proof, offered no evidence tending to show manifest racial imbalance or that such a plan mirrors the purposes of Title VII without unnecessarily trammeling the rights of non-black officers. Therefore, even if the decision of the deputy chiefs constituted an affirmative action plan, their actions nevertheless violated Title VII.
Given that Title VII is an easier hurdle to clear than the constitutional proscriptions on considerations of race in governmental employment decisions, the fact that the City's acts fail to pass muster under Title VII portends the inevitable: The City's actions also violated the Equal Protection Clause, and were therefore unconstitutional. As noted above, even the Constitution's proscription on racial preferences is not absolute, but the City offered no evidence to even begin to meet its burden under the strict scrutiny analysis. The City offered no evidence of the present effects of past discrimination nor of any other compelling interest to support the racial preferences it made on March 3, 1995. Furthermore, employing the reasoning that the Fifth Circuit used in PANO under a very similar set of facts, the Court concludes that even if the City had presented evidence of a compelling interest, its actions were not narrowly tailored. Like in Pano, if the promotions at issue here were sanctioned, the City would have had unlimited power to manipulate the non-supernumerary and supernumerary promotions in such a way as to avoid promoting non-black officers. 100 F.3d at 1169. Such a policy would not be narrowly tailored and would eviscerate the mandates of the Decree. Id. Thus, the Court concludes that the City has not met its burden under the strict scrutiny test and its acts were therefore unconstitutional.
The City did not aZtempt to argue that the Williams decree itself was evidence of past discrimination within NOPD. The Fifth Circuit had previously rejected that very argument in PANO. 100 F.3d at 1168.
In PANO, white candidates for the rank of sergeant sued the City after it "moved" black supernumerary sergeants into available regular positions in order to promote black officers from higher bands to the newly vacated sergeant supernumerary positions. 100 F.3d at 1163-64. The Fifth Circuit affirmed the district court's finding that the City's actions violated the Williams decree as well as the Constitution. Id. at 1167-1170.
In sum, the Court concludes that the City's actions not only violated Title VII and the Constitution but also the terms of the Williams decree itself. Simply said, while the City's actions were well-intentioned and based upon laudable goals, the City's means for accomplishing those goals were nevertheless unlawful.
4. Liability of the Specific Defendants
Having concluded that the March 3, 1995 promotions were both unconstitutional and in violation of Title VII, the final task before the Court is to determine which parties are liable. As noted above, four defendants were named in this suit: the City, Superintendent Pennington, Mayor Marc Morial, and Marlin Gusman. The three individual defendants were sued in both their official and individual capacities.
1. Title VII
While the relief obtained under Title VII is potentially broad, it is well-settled that liability under Title VII is directed solely at the employer as opposed to the employee whose acts violate its mandates.Grant, 21 F.3d at 652. Title VII incorporates the doctrine of respondeat superior so that the employer's liability hinges on the acts of its agents. See id. (citing Miller v. Maxwell's Int'l. Inc., 991 F.2d 583 (9th Cir. 1983)); Flanagan v. Aaron E. Henrv Comm. Health Servs. Ctr., 876 F.2d 1231, 1234-35 (5th Cir. 1989) (citing 42 U.S.C. § 2000e-2 (a)(1)). Where a public employer is involved, plaintiff can state no claim against the official who committed the discriminatory act in his individual capacity, and therefore, the doctrine of qualified immunity is inapplicable. Oden, 246 F.3d at 464-65; see Turner v. Houma Municipal Fire Police Civ. Serv. Bd., 229 F.3d 478, 485. And given that an official capacity suit is merely another way of suing the entity of which the employee is an agent, the actions against the individual in his official capacity and against the public entity essentially merge to prevent an overlapping cause of action. Turner, 229 F.3d at 483, 485.
Beginning with Title VII, as a matter of law, Superintendent Pennington, the Mayor, and Mr. Gusman cannot be held liable because they do not meet the definition of a Title VII employer. Accordingly, the Title VII claims against them in their individual and official capacities must be dismissed.
The employer for Title VII purposes in this case is the City and its liability hinges upon the acts of its agents, Superintendent Pennington and the four deputy chiefs. Although Superintendent Pennington was the sole official with authority to select officers for promotion, in exercising that authority, he deferred to the deputy chiefs and adopted their selections, tainted by race as they were, as his own. Therefore, as the Albright plaintiffs' employer, the City is the party ultimately liable for the Title VII violations that occurred on March 3, 1995.
2. Equal Protection Violations and Section 1983
Unlike Title VII which envisions no individual liability, section 1983 provides a suit against "persons" and therefore a public official can be liable in his personal capacity for a constitutional violation unless shielded by qualified immunity. Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990) (citing Clanton v. Orleans Parish. Sch. Bd., 649 F.2d 1084 (5th Cir. 1981)); Turner, 229 F.3d at 483 (citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). It is well-settled, however, that the discriminatory intent of one official may not be imputed to another for purposes of imposing personal liability for constitutional violations. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 534 (5th Cir. 1997). Rather only the direct acts or omissions of government officials, not the acts of subordinates, will give rise to individual liability under section 1983. Id. (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994) (en banc);Auster Oil Gas, Inc. v. Stream, 835 F.2d 597, 601 (5th Cir. 1988);Lopez v. Houston Indep. Sch. Dist., 817 F.2d 351, 355 (5th Cir. 1987),overruled on other grounds, Walton v. Alexander, 44 F.3d 1297, 1303 n. 4 (5th Cir. 1995) (en banc); Kline v. North Tex. State Univ., 782 F.2d 1229, 1235 (5th Cir. 1986); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985). Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 738, 109 S.Ct. 2702, 2724, 105 L.Ed.2d 598 (1989)).
While municipalities are "persons" for purposes of section 1983, Pano, 100 F.3d at 1170, unlike Title VII, the doctrine of respondeat superior does not render a governmental entity liable for constitutional violations. Brown v. Lyford, 243 F.3d 185, 191 (5th Cir. 2001), petition for cert. pending, (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L. Ed. 22 611 (1978)). Rather, a municipality is liable "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury."Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018). In other words, a municipality can only be held liable when the conduct violative of constitutional rights is directly attributable to the municipality through some sort of "official policy." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001), petition for cert. pending. A single decision can constitute official policy when a final policymaker makes the relevant decision, and when that decision is within the sphere of the policymaker's final authority. See Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996) (citing Brown v. Bryan County, 67 F.3d 1174 (5th Cir. 1995); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Turner v. Upton County, 915 F.2d 133 (5th Cir. 1990)). State law determines whether a particular individual is a municipality's final decision maker with respect to a certain sphere of activity. Id. (citing Praprotnik, 485 U.S. at 124, 108 S.Ct. at 924-25;Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402 (5th Cir. 1995)). Municipal entities are not entitled to qualified immunity from suit under section 1983. Burge, 187 F.3d at 466-67 (citingLeatherman v. Tarrant County Narcotics Intelligence Coor, Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 1993)).
The Court begins by noting that no evidence whatsoever was introduced to implicate either Mayor Morial or Mr. Gusman in the March 3, 1995 promotional decisions. Accordingly, all of the constitutional claims against them, in their individual and official capacities, are dismissed. Further, since Superintendent Pennington cannot be personally liable for the acts of his subordinates, the deputy chiefs, the constitutional claims against him in his individual capacity are dismissed. And given that the official capacity claims are in essence claims against the City, the claims against Superintendent Pennington in his official capacity are likewise dismissed. Thus, the only remaining issue is whether the City faces any Monell liability as a result of the March 3, 1995 constitutional violations.
Monell v. Department of Soc. Servs., 436 U.S. 658, 98 5. Ct. 2018, 56 L.Ed. 22 611 (1978). In Monell, the Supreme Court held that local governments can be liable under section 1983 when execution of their policies or customs inflicts plaintiff's injury. Id. at 694, 98 S.Ct. at 2037-38.
It is undisputed that Superintendent Pennington is the city official with final decision making authority with respect to promotions within NOPD. Unarguably, had he considered race in the promotional process as the deputy chiefs did, the City would have been liable. As discussed above, however, the evidence showed that Superintendent Pennington did not know that race had been considered when selecting candidates for the March 3, 1995 promotions. Nevertheless, in the exercise of his authority he chose to adopt in full the recommendations of the deputy chiefs without discussing with them the criteria they had used for the selection of candidates, instead completely deferring to their judgment. In short, the criteria used by the deputy chiefs became his criteria.
While the Court's research revealed no case that discussed Monell liability in a context like that of this case, the Court is of the opinion that Superintendent Pennington's decision to rely fully and unquestioningly upon the recommendations of others cannot serve to shelter the City from the liability it would otherwise surely face. Notwithstanding that the deputy chiefs' actions cannot be imputed to Superintendent Pennington for purposes of personal liability, for purposes of Monell liability, the Court finds that the acts of the deputy chiefs may be fairly considered as those of Superintendent Pennington rendering the City liable under section 1983.
CONCLUSION
Plaintiffs offered direct evidence that the City impermissibly considered race when selecting officers for promotion to the ranks of sergeant and lieutenant in March 1995. The City offered no evidence to show that its acts were permissible under Title VII or the Constitution. Notwithstanding the illegality of the City's actions, it is worth noting that its acts were well-intentioned and carried out pursuant to laudable goals. Unfortunately, the means used by the City to accomplish those goals were unlawful.
Accordingly;
The Court having found in favor of Plaintiffs and against the City of New Orleans on the issue of liability,
IT IS ORDERED that a status conference is SET IN CHAMBERS at 10:00 a.m. on Wednesday, July 11, 2001 , to discuss the next phase of this case and to set a date for a trial on damages;
IT IS FURTHER ORDERED that all claims against Superintendent Pennington, Mayor Marc Morial, and Marlin Gusman, in their individual and official capacities, should be and are hereby DISMISSED WITH PREJUDICE.