Albright v. City of New Orleans

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 21, 2004

No. 02-30499 Charles R. Fulbruge III
Clerk

CHARLES ALBRIGHT, III, ET AL.,

Plaintiffs,

CHARLES ALBRIGHT, III; MICHAEL ALLSBROOK; BRUCE BOND, SR; PETE
BOWEN; SAMUEL BUA; ANTHONY CAPRERA; JOHN CASTELLUCCIO; DAVID
DAUGHTRY; GAROLD FAYARD; WALTER GIFFORD; MICHAEL GOODSON; STANLEY
HOOGERWERF; EDWARD HIRSTIUS; GARY LEE; ISIDRO MAGANA; PAUL
MCCASKELL; NORMAN MCCORD, JR; MICHAEL RICE; JOHN RONGUILLO; JAY
SAACKS; TROY SAVAGE; JAMES SCOTT; FENNER SEDGEBEER; DAVID SLICHO;
LEROY SMITH, JR; LARRY STOKEY; JAMES W WARD; JULIE WILSON;
CLIFFORD WOOD; DENNIS DEJEAN; JOHN FAVALARO, III; MARJORIE
POWELL; MICHAEL GLASSER; STEPHEN DUNN; EARLE FRISARD

Plaintiffs/Appellants/Cross-Appellees,

VERSUS

THE CITY OF NEW ORLEANS, ET AL.,

Defendants,

THE CITY OF NEW ORLEANS

Defendant/Appellee/Cross-Appellant,

and

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

Defendants/Appellees

________________________________________________

BARRY FLETCHER, ET AL.,

Plaintiffs,

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 BARRY FLETCHER; STEPHEN DUNN; MICHAEL GLASSER; EARLE FRISARD;
BRUCE LITTLE

Plaintiffs/Appellants

VERSUS

THE CITY OF NEW ORLEANS, ET AL.

Defendants,

THE CITY OF NEW ORLEANS; RICHARD J. PENNINGTON, Individually and
in his Official Capacity as Superintendent of police for the City
of New Orleans

Defendants/Appellees

Appeals from the United States District Court
for the Eastern District of Louisiana
(96-CV-679)

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge:*

Plaintiffs/appellants/cross-appellees Charles Albright, III

and 34 other New Orleans police officers ("Albright plaintiffs")

sued defendant/appellee/cross-appellee City of New Orleans

("City"), among others, for discriminatory hiring practices in

promoting New Orleans police officers to sergeant and lieutenant

positions. Both parties now argue that the district court abused

its discretion in awarding $434,278.90 in compensatory damages to

*
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this opinion should not be published and is not precedent except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 Albright plaintiffs. For the following reasons, we affirm.

I.

This case is one of several suits filed by white New Orleans

police officers challenging the promotion policies of the New

Orleans Police Department ("NOPD"). The Albright plaintiffs are 35

white NOPD police officers and sergeants who were on a list of

those eligible for promotion to the ranks of sergeant and

lieutenant. They allege that they were passed over for promotion

in favor of black officers during a round of promotions in March

1995.

Promotions among the ranks of the NOPD are governed by the

rules and regulations of the Civil Service Commission ("CSC").

Officers seeking promotion to the ranks of sergeant and lieutenant

take an examination administered by the CSC, which then creates a

promotional register that ranks the passing candidates according to

their performance on the exam. When promotions are awarded,

officers from the most recent promotional register are selected.

In March 1995, 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, C.A., No. 73-629. The Williams consent decree was

designed in part to provide equal employment opportunities within

the NOPD and to eliminate the effects of prior racial

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discrimination. As part of that program, officers on the

promotional rosters were grouped into "bands" according to their

scores on the CSC's examination. All promotions were to be made

first from the band with the highest scores (the lower numbered

bands) until that band was exhausted, and then from the band with

the second highest scores and so forth until the list expired. All

candidates in a band were deemed of equal qualification for

purposes of promotion.

The Williams decree also created "supernumerary" or

"additional" positions that 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.

Besides these supernumerary positions, promotions were to be made

in strict accordance with the band system's exhaustion requirements

and the City was forbidden to unlawfully discriminate on the basis

of race or color against any employee of NOPD.

In October 1994, Police Superintendent Richard J. Pennington

began his tenure with NOPD. By March 3, 1995, when the promotions

at issue were made, all officers in Bands 1 through 4 of the

sergeants roster had 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 both black and non-black

officers. All of the supernumerary sergeant positions were filled.

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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 could be

promoted.

Nevertheless, on March 3, 1995, the City bypassed all but 1 of

the 34 candidates in Band 5 to promote black officers from Band 6

to the rank of sergeant. This was accomplished by promoting black

sergeants in supernumerary positions 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 to fill the now-vacant

supernumerary positions.

As for promotions to the rank of lieutenant, on March 3, 1995,

all sergeant candidates in Bands 1 through 3 of the lieutenants'

register had been promoted to lieutenant, thereby exhausting those

bands. Three supernumerary lieutenant positions were vacant. Band

4 consisted of 34 officers, including 5 black officers. On March

3, 1995, the City promoted 6 officers - the 5 black officers and 1

white officer - from Band 4 into regular (non-supernumerary)

lieutenant positions. With the promotion of the 5 black candidates

from Band 4, the City was then able to bypass the remaining 28

non-black officers in Band 4 to promote 3 black officers from Band

5 into the 3 vacant supernumerary positions. Thus, the City

promoted a maximum number of black candidates by selecting black

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candidates from Band 4 to fill regular non-supernumerary positions.

In February 1996, the Albright plaintiffs filed suit against

the following defendants: the City of New Orleans,

then-Superintendent Pennington, then-Mayor Marc Morial, and

then-Chief Administrative Officer Marlin Gusman. In their original

complaint, the Albright plaintiffs alleged that the City was in

violation of the Williams consent decree. They later sought to

amend their complaint to assert claims of intentional race

discrimination under Title VII, but in January 1999, the district

court dismissed these claims as time-barred. In April 1999, the

remaining claims were tried and judgment was rendered in favor of

the defendants.

Plaintiffs appealed, and in November 2000, this court affirmed

the district court’s judgment in favor of the defendant on the non-

Title VII claims, but reversed the district court's finding that

the Title VII claims were time-barred and remanded these claims for

a trial on the merits.2 On remand, the parties agreed to separate

the issues of liability and damages. On June 26, 2001, after a

bench trial, the district court found the City liable for

impermissibly considering race when selecting officers for

promotions in violation of Title VII and the Fourteenth Amendment,

but dismissed all claims against the remaining defendants.

2
Albright v. City of New Orleans, No. 99-30504, Nov. 1, 2000
(unpublished).

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 On January 24, 2002, after a one-day bench trial on damages,

the district court found the City liable for $434,278.90 in

compensatory damages, as well as post-judgment interest and

reasonable attorneys' fees. The Albright plaintiffs timely

appealed and the City cross-appealed.3 Both parties challenge the

amount of Title VII compensatory damages the district court

awarded. The Albright plaintiffs contend that the award was

insufficient to compensate them for their damages, and the City

asserts that the award was excessive.

II.

Under Title VII, "[i]f the court finds that the respondent has

intentionally engaged in ... an unlawful employment practice

charged in the complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and order such

affirmative action as may be appropriate, which may include, but is

not limited to, reinstatement or hiring of employees, with or

without back pay ... or any other equitable relief as the court

3
Because the Albright plaintiffs have not challenged the
dismissal of its claims against Mayor Morial, Superintendent
Pennington, and CAO Gusman, they are not parties to this appeal.
Another group of New Orleans police officers (Fletcher plaintiffs)
did file a brief in case its appeal in Case No. 01-30742 was deemed
premature. But another panel of this court has determined that
their appeal was not premature and have adjudicated their claims.
Albright v. City of New Orleans, 2003 WL 21919429, at *3 (5th Cir.
Aug. 11, 2003)(unpublished). Therefore, it is not necessary to
consider the issues raised in the Fletcher plaintiffs’ brief here.

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deems appropriate."4 “In formulating relief in employment

discrimination cases, the court has broad discretion to fashion

remedies as the equities of a particular case compel.”5 Courts

should attempt to fashion remedies that serve the purposes of Title

VII, which are to compensate the victims of past discrimination and

deter employers from discriminating in the future.6 And as an

appellate court, "[w]e will not intervene absent a showing of clear

abuse."7

III.

The district court awarded a total of $434,278.90 in

compensatory damages; the court arrived at this figure by using

calculations from the economic experts of both sides. First, the

court used the calculations of plaintiffs’ expert Dr. Bernard

Pettingill to determine how much a promotion was worth to each

individual plaintiff based on the additional wages and retirement

benefits each officer would have received had they been promoted.

4
42 U.S.C. 2000e-5(g)(1).
5
U.S. v. Criminal Sheriff, Parish of Orleans, 19 F.3d 238,
239-40 (5th Cir. 1994)(citing LeBlanc v. Southern Bell Tel. & Tel.
Co., 460 F.2d 1228, 1229 (5th Cir. 1972)).
6
See Walsdorf v. Bd. of Cmm'rs for the E. Jefferson Levee
Dist., 857 F.2d 1047, 1054 (5th Cir. 1988).
7
Criminal Sheriff, Parish of Orleans, 19 F.3d at 239-40
(citing Harper v. Thiokol Chem. Corp., 619 F.2d 489, 494 (5th
Cir.1980); Local 53 v. Vogler, 407 F.2d 1047, 1052-53 (5th
Cir.1969)).

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These calculations took into account the various circumstances of

each individual officer, including the officer’s age, the officer’s

years of service, and whether the officer had subsequently been

promoted or retired.8

After determining the value of a promotion for each officer,

the district court compared the likelihood that an officer would be

promoted absent discrimination with the actual rate at which the

plaintiffs had been promoted. To do this, the district court used

calculations provided by Dr. Boudreaux.9 He determined that 10.7%

(13 of 121) of all of the eligible officers, white and non-white,

were promoted to sergeant, but that only 1.1% (1 of 90) of the

white eligible officers were promoted. Thus, the discrimination

caused a 9.6% (10.7% - 1.1%) change in the chances of a white

8
The defendants’ expert Dr. Kenneth Boudreaux also
calculated the monetary value of a promotion for each individual
plaintiff, but the court did not use his calculations after
concluding that these calculations were based on “arbitrary” cut-
offs. In determining the value of a promotion, Dr. Boudreaux’s
first set of calculations assumed that the plaintiffs’ losses were
cut-off on October 7, 1995, when the City made its next round of
promotions. In his second set of calculations, Dr. Boudreaux’s
calculations assumed that the losses of the police officers not
promoted were cut-off on April 15, 1998, and that the losses of the
sergeants not promoted ended on April 16, 1999. He used these
dates because that was when the next Civil Service Registers, which
determine who is still eligible for promotion based on more recent
test scores, were approved for each position. In rejecting these
calculations, the district court also noted that Dr. Boudreaux
testified that his calculations probably would have been similar to
Dr. Pettingill if these cut-off dates had not been used.
9
Dr. Pettingill did not calculate the likelihood that a
plaintiff would have been promoted absent discrimination.

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officer being promoted to sergeant. He did the same analysis for

lieutenant promotions, finding that 18.2% (6 of 33) of all eligible

sergeants were promoted to lieutenant, but only 3.6% (1 of 28) of

eligible white sergeants were promoted to lieutenant. Therefore,

he concluded that the discrimination caused a 14.6% (18.2% - 3.6%)

change in the chances of a white sergeant being promoted to

lieutenant.

The district court then multiplied the monetary value of the

promotion as to each officer as calculated by Dr. Pettingill by the

percentage differentiation that the discrimination caused as

calculated by Dr. Boudreaux. The total award for all of the

Albright plaintiffs equaled $434,278.90, with each individual

officer receiving different amounts ranging from $404.71 to

$28,797.04 depending on that officer's particular circumstances,

such as the officer’s age, the officer’s years of service, and

whether they have subsequently been promoted or retired.10

10
The individual awards were as follows: Albright,
$11,259.98; Allsbrook, $9,492.10; Bono, $17,215.74; Bowen,
$11,647.49; Bua, $28,797.04; Caprera, $1,515.74; Castellucio,
$10,159.39; Daughtry, $11,288.16; Dejean, $9,856.03; Dunn,
$17,715.49; Favalaro, $12,500.93; Fayard, $11,349.22; Firsard,
$16,335.21; Gifford, $12,637.06; Glasser, $19,468.37; Goodson,
$9,906.53; Hirstius, $12,650.30; Hoogerwerf, $1,773.90; Lee,
$9,621.22; Magana, $10,110.43; McCaskell, $2,354.88; McCord,
$12,587.14; Powell, $8,679.74; Rice, $20,579.22; Ronguillo,
$10,903.39; Saaks, $12,819.84; Savage, $14,314.86; Scott, $404.71;
Sedgebeer, $18,623.61; Slicho, $14,026.66; Smith, $10,644.77;
Stokey, $13,793.86; Ward, $12,055.78; Wilson, $19,855.27; Wood,
$11,424.29.

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 IV.

Both parties contend that the district court abused its

discretion in calculating damages. The Albright plaintiffs take

issue with the district court's pro rata methodology, arguing that

the court should have either awarded the full monetary value of the

promotion to each plaintiff or forced the City to promote all of

the plaintiffs. Alternatively, the Albright plaintiffs argue that

even if a pro rata method was permissible, the district court

should have divided the total value of the promotions actually made

by the number of plaintiffs. The City asserts the district court

erred in using Dr. Pettingill’s calculations on the value of a

promotion instead of Dr. Boudreaux’s calculations, which were based

on cut-off dates.

A.

The Albright plaintiffs contend that the district court abused

its discretion in using a pro rata method in determining damages

because the number of promotions was not fixed. This argument is

not persuasive. We have previously approved of district courts

using a pro rata methodology in determining damages for Title VII

plaintiffs when there were not enough positions for all of the

eligible employees.11 In fact, other circuits have held that a

11
U.S. v. U.S. Steel Corp., 520 F.2d 1043, 1056 (5th Cir.
1975); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260
(5th Cir. 1974).

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district court abused its discretion when it failed to use a pro

rata approach in such a situation.12

The plaintiffs contend that our situation is distinguishable

from the other situations in which a pro rata approach was used

because in our case the number of officers promoted was directly

tied to the number of black officers eligible for promotion.

Therefore, they assert that it is impossible to tell how many

promotions the City would have made absent discrimination. Because

it is impossible to determine the number of promotions, the

plaintiffs contend, relying on Trout v. Garrett,13 a D.C. district

court decision, that the application of a pro rata method would not

fairly compensate the plaintiffs. As a result, they maintain that

the district court should have either promoted each officer or

awarded each individual officer the full value of the promotion

12
Dougherty v. Barry, 869 F.2d 605, 614-15 (D.C. Cir.
1989)(holding that the district court abused its discretion because
“the district court should have awarded each appellee a fraction of
the promotions' value commensurate with the likelihood of his
receiving one of the promotions”); U.S. v. City of Miami, 195 F.3d
1292 (11th Cir. 1999)(holding that the district court abused its
discretion in a reverse discrimination case involving the Miami
police department because the court awarded each plaintiff a full
award even though there were not enough positions available for all
the discriminated-against officers); see also Ingram v. Madison
Square Garden Ctr., Inc., 709 F.2d 807, 812 (2d Cir. 1983); Hameed
v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers,
Local Union No. 396, 637 F.2d 506, 519-21 (8th Cir. 1980); Stewart
v. General Motors Corp., 542 F.2d 445, 452-54 & n.7 (7th Cir.
1976).
13
780 F.Supp. 1396 (D.D.C. 1991).

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with no reduction based on each officer's chances of receiving the

promotion.

In Trout, a D.C. district court reviewed a Special Master’s

Title VII damage award for 93 female plaintiffs who had numerous

distinct occupations within the Navy and were discriminated against

both at hiring and during promotions over the course of seven

years.14 The Navy, relying on Dougherty v. Barry,15 a D.C. Circuit

opinion advocating the use of a pro rata approach, argued that the

Special Master erred in not assessing damages by dividing the

value of the promotions by the number of plaintiffs.16 The district

court rejected the Navy’s argument and found that Daugherty was

distinguishable because the variety in the types of positions and

the uncertainty as to the actual number of vacancies made it

impossible to calculate damages based on a fixed number of

positions.17

But our situation is different. Here, there was one discrete

event (the March 3, 1995 promotions), a fixed category of similarly

situated individuals (officers eligible for promotion to sergeant

and sergeants eligible for promotion to lieutenant), and the effect

14
Id. at 1400-01.
15
869 F.2d 605 (D.C. Cir. 1989).
16
780 F.Supp. at 1406.
17
Id. at 1406-08.

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of the discrimination was clearly limited to the denial of a

specific promotion. In contrast, in Trout there were 93 plaintiffs

who held dissimilar jobs, were denied dissimilar promotions, and

were discriminated against over the course of seven years.18

Moreover, during the damages trial, the district court did not

receive any evidence showing that the City would have promoted a

different number of officers as part of their discrimination

scheme. In fact, there was evidence to the contrary. When

promotions were handed out on March 3, 1995, one white officer was

promoted to sergeant and one white sergeant was promoted to

lieutenant. Because not only black officers were promoted, the

district court was not required to conclude the scheme was intended

to promote only black officers or that the number of promotions was

tied to the number of eligible black officers. Therefore, the

district court did not clearly err in concluding that there were a

fixed number of promotions and did not abuse its discretion in

using a pro rata approach because there were more eligible officers

than positions. Accordingly, the district court was not required

to promote every officer or to award each plaintiff the full value

of a promotion.

The Albright plaintiffs also argue that even if the district

court could use a pro rata approach, the district court erred in

18
Id. at 1401.

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assessing damages because the district court should have taken the

full value of each promotion,19 divided it by the number of

plaintiffs, and then awarded that amount to each plaintiff. This

argument is also without merit. Calculating damages in this manner

only makes sense if one assumes that the Albright plaintiffs would

have received all of the promotions. But considering that the

Albright plaintiffs consisted of only 23 of the 121 (19%) officers

eligible for promotion to sergeant and 11 of the 33 (33%) sergeants

eligible for promotion to lieutenant, this is an improper

assumption.

B.

The City contends that the district court should have limited

its calculation of damages to the date when the Albright plaintiffs

were restored to a position of equal opportunity. It asserts that

the district court’s failure to so limit damages provides a

windfall to the plaintiffs because an officer could have been

promoted at any time after March 3, 1995, the promotion date at

issue here. Therefore, the City contends that the district court

should have used Dr. Boudreaux’s calculations of the monetary value

19
The value of the promotion would be based on Dr.
Pettingill’s calculations of the average value of a lost promotion.
According to those figures, the average value of a promotion to
sergeant was worth $111,817.00 and the average value of a promotion
to lieutenant was worth $137,045.00. However, in making these
calculations, Dr. Pettingill did not use all of his figures for the
individual plaintiffs, exempting some of the lower and higher
figures as statistical outliers.

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of a promotion rather than Dr. Pettingill’s. As explained above,20

Dr. Boudreaux provided two sets of calculations for the value of a

lost promotion. The first cut off any consideration of damages

that occurred after October 7, 1995, when the City made its next

round of promotions, and the second cut off any consideration of

damages after April 15, 1998 for sergeants and April 16, 1999 for

lieutenants. These dates are when the next Civil Service

Registers, which re-determined eligibility for promotions based on

new test scores, were approved.

But the City's argument is not persuasive. The district court

has wide latitude in fashioning remedies in Title VII cases,21 and

the City has not shown that any appellate court has ever ruled that

a district court erred in failing to limit damages by applying a

cut off date. More importantly, the City has provided no evidence

that the district court’s award has caused any individual officer

to receive a windfall. The district court’s calculations reduced

damage awards for officers who have been promoted in the six years

since the March 3, 1995 promotion date. Finally, as the City

acknowledges, the loss to the plaintiffs is a loss of the

statistical probability of being promoted on March 3, 1995.

Because the plaintiffs can never again be considered for that round

20
See supra n.8.
21
Criminal Sheriff, Parish of Orleans, 19 F.3d at 239-40.

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of promotions, the loss in statistical probability is permanent;

thus it is appropriate to calculate the full amount of damages for

that statistical loss without regard to a cut-off date.

Accordingly, the district court did not abuse its discretion in

using Dr. Pettingill’s, rather than Dr. Boudreaux’s calculations,

in determining the value of a promotion to an individual plaintiff.

V.

Because the district court did not abuse its discretion in

assessing damages in this Title VII discrimination suit, we AFFIRM.

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