247 F.3d 1172 (11th Cir. 2001), 99-14162, Denney v City of Albany

Docket Nº:99-14162, 99-14163.
Citation:247 F.3d 1172
Party Name:Dewayne DENNEY, Harold Pinson, et al., Plaintiffs-Appellants, v. The CITY OF ALBANY, a Municipal Corporation, Janice Allen Jackson, Individually and in her capacity as Manager for the City of Albany, et al., Defendants- Appellees. David N. Potter, Plaintiff-Appellant, v. The City of Albany, a Municipal Corporation, Janice Allen, Individually and in
Case Date:April 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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247 F.3d 1172 (11th Cir. 2001)

Dewayne DENNEY, Harold Pinson, et al., Plaintiffs-Appellants,


The CITY OF ALBANY, a Municipal Corporation, Janice Allen Jackson, Individually and in her capacity as Manager for the City of Albany, et al., Defendants- Appellees.

David N. Potter, Plaintiff-Appellant,


The City of Albany, a Municipal Corporation, Janice Allen, Individually and in her capacity as Manager for the City of Albany, et al., Defendants-Appellees.

Nos. 99-14162, 99-14163.

United States Court of Appeals, Eleventh Circuit

April 11, 2001

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Appeals from the United States District Court for the Middle District of Georgia. (Nos. 97-00072-CV-3-WDO-1, 97-00099-CV-3-WDO-1), Wilbur D. Owens Jr., Judge.

Before BLACK and MARCUS, Circuit Judges, and HANCOCK[*], District Judge.

MARCUS, Circuit Judge:

Plaintiffs in these consolidated appeals are white firefighters in the City of Albany, Georgia who contend that the Defendants-the City of Albany and two City officials-impermissibly considered race in denying them promotions to the position of lieutenant. The district court granted summary judgment in favor of the Defendants in both cases, finding that the Plaintiffs failed to introduce sufficient evidence of discriminatory intent. Because the district court did not err in rejecting Plaintiffs' Title VII disparate treatment and § 1985(2) conspiracy claims, the only rulings as to which appellate review has properly been sought, we affirm.


Appellants are five white firefighters employed by the City of Albany Fire Department: Dewayne Denney, Harold Pinson, Robert McGee, Edgar Webb, and David Potter. The first four Appellants are Plaintiffs in one lawsuit (appeal no. 99- 14162); Potter is the single Plaintiff in a second lawsuit (appeal no. 99-14163). The Defendants in both cases are the City; Henry Fields, the City's black Fire Chief; and Janice Allen Jackson, the black City Manager. As discussed below, Plaintiffs allege that the Defendants, through Chief Fields, discriminated against them by passing them over for two promotions to lieutenant given instead to black firefighters Willie Harris and Albert Hayslip. The five Plaintiffs are similarly situated except for minor variations in their personal qualifications, and all make the same factual allegations about Defendants' conduct.

The relevant facts are largely undisputed. As a result of litigation brought by black firefighters in the early 1970s, the City's Fire Department ("Department") began to use race as a factor in its promotion decisions. In 1995, the district court supervising the Department's promotion process ended the requirement that race be used as a factor in promotions. Thereafter, the City adopted a revised promotion policy. That policy required the Fire Department to "be operated in compliance with Title VII of the Civil Rights Act of 1964 and the City of Albany, Georgia's Affirmative Action Plan." The City's Affirmative Action Plan ("AA Plan") states

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in pertinent part: "[T]he City of Albany shall recruit, hire, upgrade, train, promote, and administer personnel actions in all job classifications without regard to race, color, religion, sex, national origin, age or disability." The promotion policy also states that "every effort will be made to ensure that ... everyone, regardless of race ... will receive fair treatment during the process." The City's AA Plan does set percentage goals for the representation of blacks (among other minorities) in certain job classifications; contrary to Plaintiffs' suggestion, however, there is no indication that these goals are applied as rigid "quotas" or that race is a permissible factor in the actual promotion decisions.

Under the revised policy as it operated during the relevant time frame, firefighters applying for promotion to lieutenant took a written examination, completed a skills assessment center, and had an oral interview exam with Chief Fields. The written exam counted for 30% of the overall score; the assessment center counted for 50%; and the interview exam counted for 20%. Applicants scoring at least a 70 out of a possible 100 on this three-step qualification exercise were considered qualified for promotion to the lieutenant position. Once this process resulted in a pool of qualified applicants, Chief Fields had the authority to make the final promotional decision. In making the promotion decisions at issue in this case, Chief Fields did not consider the relative qualification exercise scores of the applicants in the pool.

Chief Fields's allegedly discriminatory hiring practices have been challenged once before. In that instance, (the "Shealy litigation"), the district court-the same judge presiding over this case-found after a bench trial that the City was liable for discrimination against whites in connection with a 1994 promotion by Chief Fields for the position of Battalion Chief. Chief Fields testified in that case that his decision was not motivated by race; the district court found otherwise. In an unpublished opinion dated March 10, 2000, we affirmed the district court's finding of Title VII liability, although we reversed on damages. We held that there was "ample evidence" to support the district court's determination of liability, and that its factual findings were not clearly erroneous. Shealy v. City of Albany, 211 F.3d 129, No. 98-8212 (11th Cir. Mar. 10, 2000), at 4.

Returning to the matter at hand, in November 1995, the Fire Department conducted a qualification exercise to identify qualified applicants for vacant lieutenant positions. Twenty-three applicants completed the examination, and twenty-one were placed in the pool of qualified applicants, having scored 70 or better. All of the Plaintiffs qualified for consideration for promotion, as did Harris and Hayslip. Their scores were: Potter 87; Harris, Hayslip, Pinson, and Webb 80.5; Denney 77; and McGee 73.5. It later was determined that the scores for these candidates were mistabulated due to inconsistent rounding-off of numbers by Chief Fields.1 As corrected, the scores should have been: Potter 94; Harris 87; Denney 86; Pinson and Webb 83.5; Hayslip 78.5; and McGee 73.5.

Qualified applicants were selected for promotion to lieutenant whenever a lieutenant opening occurred. Chief Fields testified that, in making the promotions, he considered the following factors: demonstrated

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leadership, maturity, interpersonal skills, and a willingness to support management and its policies. In 1995, Chief Fields selected Wesley Pantone (white), Tommy Anderson (white), Gregory Maze (black), and James Pratt (black) from the qualified list for promotions to lieutenant.2 None of these promotions are contested as discriminatory by the Plaintiffs.

In April 1996, Chief Fields selected Harris to fill an open lieutenant position. Harris was a 16-year veteran of the Fire Department and had served eight years as an Apparatus Operations Engineer ("AOE"). Harris's annual performance evaluation was extremely favorable:

Harris spends a lot of his free time studying his job as an A.O.E. He never refuses to do anything required of him. AOE W.R. Harris has proven to be a credit to the Albany Fire Department and the City of Albany.... AOE Harris has a very positive attitude about the Albany Fire Department and his job. W.R. Harris is always ready to assist anyone and does so without any hesitation. Not only does Harris have this attitude on the job, it also reflects over into his everyday life.

Among the qualified applicants for promotion, Chief Fields considered Harris to possess the greatest level of maturity, leadership skills, interpersonal skills, and willingness to support Departmental and City management policies.

In September 1996, Hayslip was likewise promoted to fill a lieutenant vacancy. Hayslip was a 10-year veteran firefighter with outstanding performance evaluations. Hayslip also brought years of experience as a sergeant in the Army Reserve, and had an ability to carry out instructions, a level of maturity, and an understanding of leadership that Fields says led him to conclude that Hayslip was the best available candidate for the lieutenant opening. As before, Chief Fields considered the Plaintiffs for the opening, but thought them less qualified in the factors that he considered important.

Subsequently in 1996, Chief Fields selected Kelly Harcrow (white) and James Ambrose (white) for vacant lieutenant positions from the qualified candidate pool that included Plaintiffs. Thus, from the pool, Chief Fields selected at least four whites, as well as four blacks, for promotion.

Plaintiffs filed their lawsuits on May 15 (Potter) and June 6 (Denney, et al.), 1997. In their complaints, Plaintiffs sought relief for disparate treatment and disparate impact under Title VII, for discrimination in violation of 42 U.S.C. § 1981, and for conspiracy in violation of 42 U.S.C. §§ 1985 and 1986. Plaintiffs sued Fields and Jackson in their individual as well as official capacities. As remedies, Plaintiffs requested damages as well as an injunction compelling the City to use a more objective system for awarding promotions that (in Plaintiffs' words) would permit the most qualified candidates to be selected.

After discovery, Defendants moved for summary judgment. Plaintiffs opposed the motion, but, as discussed below, at one point did not contest-indeed, they concurred in-Defendants' asserted "undisputed fact" that Chief Fields did not consider race in making the promotion decisions. In comprehensive, virtually identical 23-page orders dated September 24 (Potter) and 29 (Denney, et al.), 1999, the district court granted summary judgment

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in Defendants' favor, and...

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