United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 20, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-30517
ARMAND BOURDAIS, ET AL
Plaintiffs,
MICHAEL P CALAMARI, JR; FREDERICK H KNECHT, JR; KEITH A
LABARRIERE; GLEN J LAWSON; SHAWN D MURPHY; GARY E SMILEY;
FRANCIS A WILLIAMS II; CHRISTOPHER D WREN
Plaintiffs-Appellees,
ARMAND BOURDAIS; DAVID H ASHBURN; GLEN A BAGERT; DOUGLAS P
BALSER; ALLEN J BLANCHARD; THOMAS J BURNS, JR; SCOTT A
CHAPPUIS; LEONARD R DAIGLE; MICHAEL D DONALDSON; JAMES A
FINCHER; RONALD G FIORELLO; GERALD L FORSTER; TIMOTHY G
GLEASON; MARK J GRUNBERG; ROBERT A HENDERSON; RICHARD K
HIRSTIUS; RICHARD S JOHNSON; CHARLES N JONAU, JR; JOSEPH J
JURISICH; THEODORE A KREGER, JR; VICTOR J LAVACA; STEVEN D
LAMBERT; PHIL S LOCICERO; EDWARD M LOMBARD; DUDLEY R MAJOR;
RICHARD B McCURLEY; DAVID F NICK; PETER M PANQUERNE; FRANK A
PELICANO, JR; ADAM W POMMIER; KELLY J PORCHE; ERIK J
SCHNEIDER; RONALD J SCHWANKHART, JR; MELVIN L SEEGER; GERALD
R SEIDELL; HANSON J SMITH; MICHAEL P SMITH; DAVID K
SPILBERGER; PAUL A TEMPLET, JR; DONALD J THOMPSON; PETER S
ULI, JR; JAMES F VANCE; GLEN D WALLACE; WILLIAM J YOUNG
Plaintiffs-Appellees-Cross-Appellants,
v.
NEW ORLEANS CITY
Defendant-Appellant-Cross-Appellee,
MARC H MORIAL, Individually and in His Official Capacity as
Mayor of the City of New Orleans; J MICHAEL DOYLE, JR,
Individually and in His Official Capacity as Director of
Personnel for the New Orleans Department of City Civil
Services; NEW ORLEANS CITY CIVIL SERVICE COMMISSION; WARREN E
MCDANIELS, Individually and in His Official Capacity as
Superintendent of the New Orleans Fire Department; SIDNEY J
BARTHELEMY; WILLIAM J McCROSSEN; NEW ORLEANS FIREFIGHTERS
ASSOCIATION
1
Defendants-Cross-Appellees
Appeals from the United States District Court for the
Eastern District of Louisiana
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This appeal arises out of a lawsuit filed in 1999 by a number
of Caucasians who, in 1991, applied to be fire recruits with the
New Orleans Fire Department (NOFD). New Orleans (the City) used
race as a factor in its fire recruit hiring policy, and the
plaintiffs alleged that this impermissibly caused their hiring
delays.
I. BACKGROUND
The City administers a written test to applicants seeking to
become firefighters for the NOFD. The plaintiffs all took this
aptitude test in 1991 and their scores were recorded on the 1991
Register. If an applicant received a passing score on the test, he
was then required to pass further screening (agility test, drug
screening, medical background check, etc.) before being placed on
a list of recruits eligible for hire.
The City hired seven classes of recruits from the 1991
Register and accompanying eligibility lists over the next few
years. Class One was hired March 22, 1992. None of the plaintiffs
in this suit were hired in Class One. Each plaintiff was hired at
2
some point between September 8, 1992 (Class Two) and August 21,
1995 (Class Seven).
While NOFD previously hired applicants from the eligibility
lists top down from the highest score on the test, the 1991
applicants were subjected to a policy whereby NOFD would hire one
African American for every Caucasian. This resulted in African
Americans getting hired before Caucasians who had higher test
scores.
The City’s liability for this hiring policy was established
through two separate lawsuits—Lalla and Courtade1—instituted in
1996 and concerning the same discriminatory practice. In those
cases, unlike the plaintiffs here, none of the applicants were
hired into any of the seven classes of recruits from the 1991
Register. On May 13, 1998, the Lalla plaintiffs deposed former
Fire Superintendent William J. McCrossen who testified that the
1991 applicants were hired using a racial quota system. On March
5, 1999, the Lalla plaintiffs won their motion for summary judgment
establishing that the hiring policy violated their Fourteenth
Amendment right to equal protection.
Two months later, on May 10, 1999, plaintiffs brought this
suit to recover back pay and lost benefits attributable to their
hiring delays. The district court, after trial, found that the
1
Lalla, et al. v. City of New Orleans, et al., Civ. A. 96-2640;
Courtade, et al. v. City of New Orleans, et al., Civ. A. 96-2658.
3
hiring policy did cause delay in most of the plaintiffs’ eventual
hires and awarded those members back pay, but denied damages for
lost pension benefits.
II. DISCUSSION
The City’s principal argument at trial—and only basis for
appeal—is that the 1999 lawsuit was untimely. It argues that the
applicable one-year statute of limitations began to run when the
hiring decisions were made or, at the very latest, when the Lalla
and Courtade suits were filed in 1996.
Thirteen plaintiffs cross-appeal the district court’s finding
that they were not entitled to damages because they could not show
they were harmed by the hiring policy, and the plaintiffs
collectively cross-appeal the district court’s refusal to award
compensation for lost pension benefits.
A. Prescription
The central issue is whether the Lalla and Courtade suits,
filed years before this suit, should have put plaintiffs on notice
of their causes of action, thereby triggering the one-year statute
of limitations and making this suit untimely.2
2
This is not a class action, and if certain plaintiffs knew or
should have known of their causes of action that would not impute
the same knowledge to all of the plaintiffs. Nonetheless, the
plaintiffs’ knowledge is often discussed collectively because, at
trial, the City focused on facts—such as earlier litigation and
the presence of a NOFD “rumor mill”—that it argued should have
put all of the plaintiffs on notice of their claims. It argued
that all of these plaintiffs should have known of their claims
for the same reasons.
4
1. Standard of Review
The district court found after trial that the plaintiffs
neither knew nor should have known of their causes of action before
Superintendent McCrossen’s deposition on May 13, 1998, thus
suspending the statute of limitations until that day. This Court
reviews such determinations, when made after trial and not on
summary judgment, for clear error. See Colonial Penn. Ins. v. Mkt.
Planners Ins. Agency, 157 F.3d 1032, 1036 (5th Cir. 1998); Glass v.
Petro-Tex Chem. Corp., 757 F.2d 1554, 1562 (5th Cir. 1985).
2. The Statute of Limitations and Contra Non Valentem
Plaintiffs assert their discriminatory hiring claims under the
Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. §§
1981, 1983, 1985, and corresponding state statutes. In § 1983
claims, the applicable statute of limitations is that which the
state would apply in an analogous action in its courts. Pegues v.
Morehouse Parish Sch. Bd., 632 F.2d 1279, 1280-81 (5th Cir. 1980).
In accordance with applicable Louisiana law, we apply a one-year
liberative prescriptive period to these claims. See LA. CIV. CODE
art. 3492.
The discriminatory acts in this case took place between 1992
and 1995, when the plaintiffs were denied hiring preference based
on race. This suit was not filed until 1999, well beyond the one-
year limitations period. Once it is established that the statutory
limitations period has run, the plaintiffs have the burden to prove
5
that some exception to prescription applies. Terrebonne v. Mobil
Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
The plaintiffs argued, and the district court found, that the
contra non valentem doctrine operated to suspend the limitations
period, making their claims timely. This doctrine applies in four
distinct instances under Louisiana law, but the only one relevant
here is that prescription is suspended “when the plaintiff does not
know nor reasonably should know of the existence of the cause of
action.” Id. at 884 n.37.3 “It does not operate to toll the
running of the limitation period until such time as plaintiff
discovers all of the elements of a cause of action. Once a
claimant learns that she has been injured, the burden is on her to
determine whether she should file suit.” Colonial Penn., 157 F.3d
at 1034; see also Jordan v. Employee Transfer Corp., 509 So.2d 420,
423 (La. 1987).
The plaintiffs argue that the limitations period for their
claims was suspended until the end of 1998, when each individually
learned that his hiring delay was caused by the discriminatory
hiring policy.4 The City counters that earlier litigation should
have either alerted the plaintiffs that they were discriminated
3
This is a variant of what is typically referred to as the
“discovery rule” in other jurisdictions.
4
The plaintiffs consistently claimed that they learned of these
claims when contacted by a lawyer in December, 1998, or January,
1999.
6
against or given them sufficient notice to investigate possible
claims. Trial testimony suggests that a few of the plaintiffs
heard vague rumors about the Lalla litigation more than a year
before this suit was filed, but did not know that it affected them.
The district court found that, despite possibly knowing of the
Lalla litigation, “the Bourdais plaintiffs were not similarly
situated because they had been hired from the 1991 Register and
Lalla had not been hired as a Fire Recruit from that Register when
he filed his lawsuit.”
Whether the extremely limited knowledge certain plaintiffs had
of the Lalla and Courtade suits—and the others arguably should have
had—triggered the statute of limitations is a fairly close
question. The most instructive case from this circuit is Glass v.
Petro-Tex Chem. Corp., 757 F.2d 1554 (5th Cir. 1985).5 In that
case, a woman suspected that she was denied a promotion due to sex-
based discrimination and voiced those suspicions years before she
brought her suit. Nonetheless, this Court found that her mild
suspicions were not sufficient to put her on notice and to trigger
the limitations period. This Court noted that the plaintiff “did
not know and could not reasonably be expected to have realized
that” she was the victim of discrimination. Id. at 1561; but cf.
5
Glass concerned a “continuing violation,” which is not an issue
before this court. Nonetheless, the question in Glass was nearly
identical to the one here. See Glass, 757 F.2d at 1561.
7
Eastin v. Entergy Corp., 865 So.2d 49 (La. 2004) (plurality
opinion) (limitations period for employee’s discriminatory
discharge claim begins immediately upon termination, regardless of
whether circumstances of discharge merit suspicion).
Like in Glass, we cannot conclude that these plaintiffs should
have known about or should have investigated potential
discriminatory hiring claims. Even if they had knowledge of the
Lalla litigation, that knowledge would not necessarily raise
serious suspicions among these plaintiffs who NOFD actually hired
from the 1991 Register. One reasonable conclusion they could draw
is, because they were hired, they were not subject to the same
discrimination the Lalla and Courtade plaintiffs complained of.
Given the differences between these plaintiffs and those in
the Lalla and Courtade suits, it was not clearly erroneous for the
district court to find that prescription did not begin to run for
these plaintiffs before May 13, 1998.6
6
At oral argument, the City asked this Court to find as a matter
of law that once an injured party realizes he has a claim, all
similarly-situated individuals injured by the same act should
also be found to have knowledge of their claims. There is no
legal support for that approach. That proposed rule is based on
the City’s misplaced belief that prescription begins to run once
a plaintiff could have known of his claims, which is a critically
different standard than the should have known standard actually
applicable under Louisiana law.
While the City makes a reasonable policy argument that
liability for past acts should not be perpetual, it is an
argument that is better brought before the legislature. In
certain areas, such as medical malpractice, the Louisiana
8
B. Refusing Damages to Thirteen Plaintiffs
After finding that the plaintiffs’ claims had not prescribed,
the district court denied damages to seventeen plaintiffs.
Thirteen of them cross-appeal. The district court found that those
plaintiffs did not prove they were eligible for hire into an
earlier class and had “not met their burden of showing that they
are entitled to damages for delay in hiring.” Plaintiffs argue
that, given the existence of a discriminatory policy, the district
court should have shifted the burden to the City to prove that the
hiring delays would have occurred even absent the infirm policy.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 284 (1977).
Assuming that Mt. Healthy is applicable in this context,7 the
burden only shifts to the defendant after a plaintiff proves that
(1) there was an adverse employment action, and (2) race played a
“substantial or motivating factor” in it. See Brady v. Fort Bend
County, 145 F.3d 691, 711–12 (5th Cir. 1998). These thirteen
legislature has shown a willingness to limit the contra non
valentem principle. See LA. REV. STAT. ANN. § 9:5628 (requiring
that a medical malpractice claim be brought within three-years of
the wrongful act, regardless of the plaintiff’s knowledge of her
claim).
7
This Court has held, in a decision abrogated on other grounds,
that the Mt. Healthy burden-shifting methodology applies to
racial preference cases. Hopwood v. Texas, 78 F.3d 932, 956 (5th
Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306
(2003).
9
plaintiffs failed to show they were eligible for hire in any class
earlier than the ones they were hired into. In other words, they
failed to show that they suffered any adverse employment action
whatsoever.
While these plaintiffs’ names were on the 1991 Register, they
did not show that they were on the eligibility lists and passed the
additional screening in time to be eligible for hire into an
earlier class. The district court found that of these plaintiffs,
“none produced any evidence to show that they were actually
eligible for hire on the dates they claim they should have been
hired.”
The plaintiffs complain that the eligibility lists were
incomplete and point to individuals who were hired into classes
even though their names were not on the accompanying lists. Even
if the City’s eligibility lists were incomplete, that does nothing
to discharge the plaintiffs’ initial burden of demonstrating that
an adverse action occurred. They could have shown through other
means that they were eligible for hire into earlier classes, but
plaintiffs never point us to any evidence satisfying this initial
burden.8
8
The district court’s discussion of this point is somewhat
misguided. It discusses the plaintiffs’ failure to prove they
were eligible for hire into an earlier class as an issue of
causation and damages, skipping the initial question of whether
an adverse employment action ever took place. Unlike wrongful
discharge claims, where a dispute about whether the plaintiff was
discharged is unlikely, a delayed hiring claim will often give
10
The district court did not err in placing the burden of
showing an adverse employment action took place on each plaintiff.
C. Pension Damages
Plaintiffs argue that the hiring delays cause their pension
benefits to be perpetually smaller than they should be because
those benefits are calculated in relation to the number of years
each employee serves. While the district court awarded plaintiffs
damages for back pay and lost seniority status, it denied them
monetary damages for the accompanying delay in accumulating and
receiving pension benefits. Plaintiffs cross-appeal that decision.
The district court treated the request for lost pension
benefits as a claim for front pay and that classification is not
challenged here.9 Front pay awards are reviewed for abuse of
discretion. Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869,
869 (5th Cir. 1999) (citations omitted). The district court is
afforded broad discretion in determining awards for lost future
benefits. See Deloach v. Delchamps, Inc., 897 F.3d 815, 822 (5th
rise to a question of fact about whether the plaintiff was hired
at the earliest appropriate time. While the district court
inartfully discusses this as an issue of damages, the factual
finding is absolutely clear, “that all were hired into the first
Recruit class for which they were actually eligible to be hired.”
9
Whether a plaintiff’s delayed accumulation of pension benefits
should be considered back pay or front pay appears to be an
unresolved issue in this Circuit. Neither party briefed this
issue and it has therefore been waived. We do not disrupt the
district court’s classification of this award as front pay but
note that the issue remains undecided.
11
Cir. 1990).
The district court found that awarding “present monetary
damages for the loss of a prospective benefit that either may not
ultimately be earned, or that may actually be earned and collected
in full in the future, would go beyond making plaintiffs’ [sic]
whole for the unlawful discrimination they suffered. It would
provide a windfall bonus.” The court reasoned that the pensions
will not vest unless each plaintiff continues to work at NOFD for
twenty years, a scenario too speculative to base a monetary award
on.
We find that the district court did not abuse its discretion
in refusing to award monetary damages for the delay in accumulating
and receiving pension benefits. The dollar amount of damages
attributable to the delayed pension benefits is extremely
speculative, and given the uncertainty of whether the pensions will
ever vest, the district court was within its discretion to find
that awarding such damages would go beyond making the plaintiffs
whole. Given the speculation involved in calculating the amount of
monetary harm incurred, if any, it was not an abuse of discretion
to refuse such an award.
III. CONCLUSION
The district court did not clearly err when it found that each
of the present plaintiffs’ claims were timely, it appropriately
dismissed thirteen plaintiffs who failed to show they suffered from
12
an adverse employment decision, and it was within its discretion to
deny pension-related damages. Accordingly, we AFFIRM the district
court’s judgment and award.
13