Albright v. City of New Orleans

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

________________________________

No. 99-30504
________________________________

CHARLES ALBRIGHT, III, ET AL.,

Plaintiffs,

CHARLES ALBRIGHT, III, ET AL.,

Plaintiffs-Appellants-Cross-Appellees,

v.

THE CITY OF NEW ORLEANS, ET AL.,

Defendants,

THE CITY OF NEW ORLEANS,

Defendant-Appellee-Cross-Appellant.

_______________________________________________________________

BARRY FLETCHER, ET AL.,

Plaintiffs,

BARRY FLETCHER, ET AL.,

Plaintiffs-Appellants,

v.

THE CITY OF NEW ORLEANS, ET AL.,

Defendants-Appellees.

_______________________________________________________________

SAMUEL BUA, ET AL.,

Plaintiffs-Appellants-Cross-Appellees,
 MICHAEL GLASSER, ET AL.,

Plaintiffs-Appellants,

v.

THE CITY OF NEW ORLEANS

Defendant-Appellant-Cross-Appellee,

RICHARD PENNINGTON, individually and in his capacity as Chief of
Police, MARLIN GUSMAN, individually and in his official capacity
as Chief Administrative Officer,

Defendants-Appellees.

_______________________________________________________________

PAUL H. BOLIAN,

Plaintiff-Appellant,

v.

THE CITY OF NEW ORLEANS,

Defendant-Appellant-Cross-Appellee,

MARC H. MORIAL, individually and in his official capacity as
Mayor of the City of New Orleans, RICHARD PENNINGTON,
individually and in his official capacity as Superintendent of
Police for the City of New Orleans, MARLIN GUSMAN, individually
and in his official capacity as Chief Administrative Officer of
the City of New Orleans,

Defendants-Appellees.

_____________________________________________

Appeals from the United States District Court
for the Eastern District of Louisiana
(96-CV-679-J)
_____________________________________________
November 1, 2000

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Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:**

In this consolidated proceeding, several groups of white New

Orleans police officers asserted various discrimination claims

against the City of New Orleans (the “City”) predicated on race.

The district court resolved a number of claims on motion and tried

the remaining claims. The City prevailed on the issues that were

tried. The officers challenge several of the pre-trial rulings.

Our disposition of these challenges follows.

I.

Each time the City seeks to promote its police officers in

rank, it administers an examination and uses the results of that

examination to establish a register from which promotions are made.

According to the rules of the New Orleans Civil Service Commission

(the “Commission”), each register must stay in force for at least

one year, and may then be extended for two more years at the

discretion of the Director of the Commission, and then for two more

years at the discretion of the full Commission. See Rules 5.2 and

5.3 of the Civil Service Commission of the City of New Orleans.

The promotions practices of the City are further governed by

*
Circuit Judge of the Seventh Circuit, sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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the terms of a consent decree and a related stipulation entered in

the case of Williams v. City of New Orleans, No. 73-629 (E.D. La.

May 26, 1987). The consent decree, entered to remedy the

discrimination claims of black police officers, requires that the

City group candidates for promotion in rank into different bands on

the promotions register based on their results on the qualifying

examination. All officers in the same band are deemed to be of

equal ability, and the City must promote all the members of a given

band before promoting members of a lower band. The only exception

to this rule is that the City was required to create a number of

additional, or supernumerary, positions at each level of rank to be

filled by black officers without regard to where those officers

might fit in the band system.

White police officers intervened in the Williams case,

concerned that the promotion scheme described above would limit

their chances for promotion. In response to those concerns a

stipulation was added to the consent decree that required the City

to maintain a fixed ratio of officers of a given rank to the total

number of officers on the force, the ratio to be calculated without

inclusion of the additional black officers to be promoted under the

terms of the consent decree. In particular, the City must maintain

a ratio of lieutenants to the total force of 4.9%. The stipulation

allows a variance from the various required percentages for a

period of up to nine months. The consent decree and related

stipulation lapse upon the expiration of the second promotions

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register created under their terms.

The City established its second promotions register for

lieutenants in May of 1994. It made its first set of promotions

from the register in March of 1995. At that time, it promoted all

the members of the first three bands, plus five members of the

fourth band. All of the sergeants promoted from the fourth band

were black. None of the 27 white sergeants in the fourth band were

promoted in May of 1995. Three subsequent rounds of promotions

were made in 1995 and 1997, all of white officers. Over the same

time, a number of black officers were appointed to supernumerary

positions. As of October 22, 1997, 21 white officers were left in

the fourth band and 42 white and 7 black officers were left in the

fifth band. Over the same time period, the City began to fall

behind in maintaining the required ratio of lieutenants to the

total force. It first fell behind on April 8, 1997, and by

November 3, 1997, it was 18 lieutenants below the required 4.9%.

According to the terms of the stipulation, it would need to appoint

additional lieutenants (at least 18 as long as the size of the

force as a whole stayed constant) by January 8, 1998, which was the

end of the nine month grace period allowed by the stipulation. The

natural result of the City’s actions was thus to require the quick

promotion of an exclusively white group of sergeants before the end

of 1997.

The stipulation’s requirements would only bind the City so

long as the second promotions register was in effect. The register

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had been set to expire on August 31, 1997. The Commission chose to

extend the life of the register for six months at a meeting on

August 14, 1997. However, the Commission voted on November 20,

1997 to rescind the extension of the promotions register that it

had ordered on August 14.

II.

This appeal consolidates four actions, each of which touches

on some part of the promotions practices described above. The

cases, and the claims each raises, are as follows.

Barry Fletcher, et al. v. The City of New Orleans, et al. was

filed in August of 1997 by five white sergeants (together, the

“Fletcher plaintiffs”) each of whom was on the second lieutenants

promotions register, in either band four or band five, and were

still awaiting promotion to lieutenant. They alleged that the City

was working, starting in May of 1997, to secure expiration of the

second lieutenants promotions register. They alleged that the City

was doing so in violation of 42 U.S.C. § 1983 in that the City was

seeking to avoid promoting white sergeants to lieutenant. The

Fletcher plaintiffs later amended their complaint to add a charge

that the City was in violation of the stipulation to the Williams

consent decree in falling below the required ratio of lieutenants

to the total force.

Charles Albright, III, et al. v. The City of New Orleans, et

al. was filed in February of 1996 by 34 white patrol officers and

sergeants (together, the “Albright plaintiffs”). They alleged that

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a City ordinance which made residence in Orleans Parish a

precondition for promotion was unlawful in several respects. They

alleged that the ordinance had a racially discriminatory disparate

impact on white police officers, that the ordinance was not

properly validated before going into effect, that the City had

discriminated against four female police officers on the basis of

their sex, and that the City retaliated against the plaintiffs for

filing complaints with the Equal Employment Opportunity Commission

after the first round of promotions in March of 1995. Each of

these claims was either dismissed or tried to an adverse judgment

and they are not at issue in this appeal. However, the Albright

plaintiffs, as a result of discovery on their original claims,

amended their complaint in September of 1998 to add theories of

intentional racial discrimination under 42 U.S.C. § 1983 and other

similar state and federal laws. Their amendment alleged that the

promotions decisions in March of 1995 were not only tainted by the

domicile ordinance, but also by the intentional choice of the City

to discriminate against the Albright plaintiffs on the basis of

their race.

Samuel Bua, et al. v. The City of New Orleans, et al. was

filed in December of 1997 by 37 white sergeants (together, the “Bua

plaintiffs”), each of whom was on the second lieutenants promotions

register, in either band four or band five, and was still awaiting

promotion to lieutenant. Seven of the Bua plaintiffs were also

Albright plaintiffs. The Bua plaintiffs alleged that the City was

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in violation of the stipulation to the Williams consent decree in

falling below the required ratio of lieutenants to the total force,

which was the same claim as the amendment to the complaint of the

Fletcher plaintiffs. The Bua plaintiffs later amended their

complaint in the same manner as was done by the Albright

plaintiffs; the Bua plaintiffs now alleged that they had suffered

intentional racial discrimination in the promotions decisions the

City made in March of 1995.

Paul Bolian v. The City of New Orleans, et al. was filed in

October of 1998 by a white patrolman alleging disparate impact

racial discrimination arising from the City’s residence ordinance

as well as intentional discrimination by the City against him on

account of his race. His complaint, in effect, alleged the

disparate impact theory of the Albright plaintiffs’ original

complaint as well as the intentional discrimination theory of the

Albright plaintiffs’ proposed amendment.

Following the decision of the Commission on November 20, 1997

to rescind its previous extension of the second lieutenants

promotions register the Fletcher plaintiffs sought, and the

district court granted, a temporary restraining order preventing

the expiration of the second lieutenants promotions register. The

order was continued indefinitely, with the consent of all the

parties, until a resolution of the consolidated cases on the

merits.

The district court disposed of the issues raised in this

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appeal as follows. It granted summary judgment to the City and the

other defendants on the intentional discrimination claims of the

Fletcher, Bua, and Albright plaintiffs on the grounds that those

claims were time barred. The district court ruled that the

Fletcher plaintiffs and the Bua plaintiffs should have known in

March of 1995, when the City promoted only black officers to

lieutenant out of band four, that they were being discriminated

against because of their race. Because the applicable prescriptive

period for their claims is one year, the district court ruled that

their suits, filed in August of 1997 and September of 1998 (which

was the date of the amendment by the Bua plaintiffs), were

untimely.

As to the intentional discrimination claims of the Albright

plaintiffs, who alleged intentional discrimination in promotions

decisions made in March of 1995, the district court ruled that

those claims were time barred. The district court ruled, without

further explanation, that the claims in the amendment the Albright

plaintiffs made in September of 1998 did not relate back to the

timely filed original complaint of February of 1996. Finally, the

district court ruled that the City had not violated the stipulation

to the Williams consent decree, which had been alleged by both the

Fletcher and Bua plaintiffs. The district court ruled that nothing

in the rules of the Commission prevented the Commission from

rescinding an extension of a promotions register. As such, there

were no grounds for issuing the temporary restraining order, which

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was the only thing keeping alive the allegations of the Fletcher

and Bua plaintiffs. The district court thus ruled that the second

lieutenants promotions register lapsed as of November 20, 1997 at

the latest and that the City never violated the stipulation to the

consent decree.

III.

The above description of the somewhat confused factual and

procedural background in this case allows us to resolve this appeal

in a straightforward manner. We turn first to the district court’s

ruling that the Fletcher and Bua plaintiff’s discrimination claims

are time barred.

A.

We review the district court’s decision to grant summary

judgment de novo. Gardes Directional Drilling v. U.S. Turnkey

Exploration Co., 98 F.3d 860, 864 (5th Cir. 1996). While the

length of the prescriptive period for claims under § 1983 is

determined by reference to analogous state law1, when the

prescriptive period begins to run is a matter of federal law. The

prescriptive period begins to run, “when the ‘plaintiff knows or

has reason to know of the injury which is the basis of the action.’

Stated differently, ‘[u]ntil the plaintiff is in possession of the

‘critical facts’ that he has been hurt and who has inflicted the

injury, the statute of limitations does not commence to run.’”

1
Louisiana law provides a one year prescriptive period for §
1983 claims. Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983).

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Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983) (internal

citations omitted).

The first step in analyzing whether the statute of limitations

serves to bar an action is understanding the nature of the injury

of which the plaintiff complains. The Fletcher plaintiffs, in

their original 1997 complaint, complained that they were injured by

the City’s actions in seeking expiration of the second lieutenants

promotions register in the summer and fall of 1997. They did not

complain about the actions of the City in making the first round of

promotions to lieutenant in March of 1995. Indeed, they could not

complain of those promotions decisions because some of their number

were in band five of the promotions register and so could not have

been promoted in March of 1995, when the City reached only as low

as band four in promoting new lieutenants.

Having clarified the nature of the Fletcher plaintiffs

complaint, the error of the district court is clear. The Fletcher

plaintiffs do not complain of discrimination arising from the

March, 1995 promotions decisions. If they were, the district court

would have been correct in concluding that the injury, which

occurred in March of 1995, was too far removed in time from the

filing of the lawsuit in August of 1997. However, the Fletcher

plaintiffs complain of an injury caused by the City sometime during

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the summer of 1997.2 That is when the clock began to run on the

one year prescriptive period. Because the Fletcher plaintiffs

filed suit in August of 1997, well within one year from the date

the alleged discriminatory acts occurred, the district court erred

in granting summary judgment on this issue.

For the same reasons that the district court erred in granting

summary judgment to the City on the Fletcher plaintiffs’

intentional discrimination claims, it was correct to grant summary

judgment on the intentional discrimination claims of the Bua

plaintiffs. They complained of discrimination that occurred in

March of 1995. However, the Bua plaintiffs did not file their

complaint until December of 1997. This was well past one year

after the alleged discriminatory acts occurred. So even if the Bua

plaintiffs’ amended complaint, which was filed in September of 1998

and which first raised claims of intentional discrimination, were

considered to relate back to their original complaint, the claims

would have been time barred. Therefore, the district court was

correct to grant summary judgment to the City on the intentional

discrimination claims of the Bua plaintiffs.

B.

We turn next to the decision of the district court that the

intentional discrimination claims of the Albright plaintiffs are

2
Whether the City’s actions in seeking termination of the
second lieutenants promotions register were discriminatory or
simply a result of a change in police tactics is a matter for
further proceedings in the district court.

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time barred. Like the decisions discussed in section III.A. above,

we review this decision de novo. The intentional discrimination

claims of the Albright plaintiffs, which concern the City’s

promotions decisions of March of 1995, were first alleged in the

amendment the Albright plaintiffs made to their original complaint

in September of 1998. The amendment was filed well after one year

after the alleged discriminatory acts occurred. Thus, the

intentional discrimination claims of the Albright plaintiffs can

only be considered timely made if they relate back to the claims

contained in the original complaint of the Albright plaintiffs,

which was filed only eleven months after the alleged discriminatory

acts, in February of 1996. Thus, we must review the decision of

the district court that the Albright plaintiff’s amended complaint

did not relate back to their original complaint.

Federal Rule of Civil Procedure 15(c)(2) allows relation back

of amended complaints when, “the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original

pleading.”

The Albright plaintiffs’ original complaint alleged that the

promotions decisions the City made in March of 1995 were

discriminatory because of the residence ordinance which prevented

them from being promoted. In particular, they alleged that the

residence ordinance which guided the March of 1995 promotions

decisions was racially discriminatory because it had an adverse

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impact on them. Their amended complaint added a claim that the

decisions the City made in March of 1995 were also biased in that

City officials actively sought to discriminate against them on the

basis of their race. Whatever the truth of either claim, each is

based on the same transaction or occurrence, namely the promotions

decisions the City made in March of 1995. The Albright plaintiffs,

in effect, simply sought to prove discrimination against them in

the March of 1995 promotions by other means. Their original

complaint sought to prove discrimination by looking to the adverse

impact of the residence ordinance. The amended complaint sought to

prove the same discrimination by looking to direct evidence of the

intent of high-ranking members of the City’s police force. Though

the theories of proof are different, both the original and the

amended complaint concern alleged discrimination in the March of

1995 promotions decisions. We conclude, therefore, that the claims

the Albright plaintiffs sought to allege clearly related back, in

both time and subject matter, to the claims presented in their

original complaint. The district court erred in granting summary

judgment on the intentional discrimination claims of the Albright

plaintiffs.

C.

We turn next to the claim of the Fletcher and Bua plaintiffs

that the City violated the stipulation to the Williams consent

decree. The district court decided that the temporary restraining

order that it had previously entered to prevent expiration of the

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second lieutenants promotions register had been improvidently

granted and that the City had never been in violation of the

consent decree. Whether that decision was correct presents, in

this case, a question of law that we review de novo. Randel v.

United States Dept. of Navy, 157 F.3d 392, 395 (5th Cir. 1998).

The district court first entered its temporary restraining

order preventing expiration of the second lieutenants promotions

register on November 20, 1997, the same day the Commission decided

to rescind its previous extension of that register. All of the

parties later agreed to leave the temporary restraining order in

place pending a resolution of the merits of the claim made by the

Fletcher and Bua plaintiffs. When the district court reached the

merits of this claim, it recognized that the temporary restraining

order should only have been entered if the Fletcher and Bua

plaintiffs could complain that the Commission had no power to

rescind its previous extension of the promotions register. The

district court decided that the Commission was acting within its

authority, and so decided that the temporary restraining order had

been improvidently granted. It then decided that as the Commission

had been acting properly, the second lieutenants promotions

register had expired in November of 1997. As this was before the

expiration of the nine month grace period (which had begun to run

in April of 1997 when the City first fell behind in maintaining the

required number of lieutenants), the district court ruled that the

City never violated the stipulation to the Williams consent decree.

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The Fletcher and Bua plaintiffs now argue that the district court

erred in dissolving the temporary restraining order and that the

City was in fact in violation of the stipulation to the Williams

consent decree.

We agree with the district court that the Commission was

acting within its authority when it voted to rescind the extension

of the second lieutenants promotions register. The rules of the

Commission provide both the director and the full Commission with

considerable discretion to extend the life of promotions registers.

Although the rules of the Commission are silent on its power to

rescind a register, we see no reason to deny the Commission the

discretion to rescind extensions of promotions registers in light

of the plenary powers the rules grant it to extend the life of

registers. The Fletcher and Bua plaintiffs point to no authority

that would support a contrary conclusion. The district court was

correct to dissolve the temporary restraining order as

improvidently granted.

The Fletcher and Bua plaintiffs also argue that the City was

in violation of the stipulation to the Williams consent decree as

soon as it fell behind the 4.9% threshold in April of 1997. They

argue that the language of the stipulation only allows the City to

be out of compliance during the nine month grace period in certain

enumerated situations. This argument simply misreads the language

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of the stipulation.3 The reasons given in the stipulation for how

the city might be out of compliance are merely illustrative and not

exclusive, as the Fletcher and Bua plaintiffs contend. The

language of the stipulation allows the City to be out of compliance

for any reason so long as it cures that problem within nine months.

The City failed to comply with the 4.9% requirement beginning in

April of 1997. The nine month grace period had not expired in

November of 1997 when the second lieutenants promotions register

was rescinded. The district court correctly ruled that the City

never violated the stipulation to the Williams consent decree.

D.

Finally, we come to the claims made by Paul Bolian. Though he

filed a notice of appeal, and though his cause of action is

mentioned in the joint brief of the Albright and Bua plaintiffs and

he makes a conclusory prayer for relief in that brief, he presents

no substantive arguments as to why the district court was incorrect

to dismiss his claims. Therefore, we must consider his appeal

abandoned.

3
The stipulation to the Williams consent decree provides that,
“variance from the above percentages [i.e., the 4.9% requirement]
lasting no longer than nine months, such as might result from
hiring more police officers or from the promotion, termination, or
retirement of one or more officers from the rank involved, shall
not constitute a violation of this stipulation.” Quoted in
Albright v. City of New Orleans, No. 96-0679 (E.D. La. April 14,
1999) (opinion of the court).

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 IV.

For the reasons stated above: 1) we REVERSE the district

court’s grant of summary judgment dismissing the intentional

discrimination claims of the Fletcher plaintiffs as time barred and

REMAND these claims to the district court for further proceedings;

2) we REVERSE the district court’s grant of summary judgment

dismissing the intentional discrimination claims of the Albright

plaintiffs as time barred and REMAND these claims to the district

court for further proceedings; and 3) we AFFIRM the remaining

orders challenged on appeal, including the district court’s order

dismissing the Bua plaintiff’s intentional discrimination claims,

the district court’s order vacating the temporary restraining

order, which had required the City to maintain the second

lieutenants promotions register, and the district court’s order

dismissing the claims of Paul Bolian.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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