Decorte v. Jordan

• Decision Date: 15 August 2007
• Docket Number: No. 05-31042.,05-31042.
• Parties: Judith L. DECORTE; et al., Plaintiffs, Judith L. Decorte; Ira C. Austin, Jr.; Cynthia C. Baggett; Mercedes R. Bittinger; Terri C. Bonnecarre; et al., Plaintiffs-Appellees, v. Eddie JORDAN; et al., Defendants, Eddie Jordan, In his individual and official capacities; Orleans Parish District Attorney's Office, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.3d 433

Judith L. DECORTE; et al., Plaintiffs, Judith L. Decorte; Ira C. Austin, Jr.; Cynthia C. Baggett; Mercedes R. Bittinger; Terri C. Bonnecarre; et al., Plaintiffs-Appellees, v. Eddie JORDAN; et al., Defendants, Eddie Jordan, In his individual and official capacities; Orleans Parish District Attorney's Office, Defendants-Appellants.

No. 05-31042.

United States Court of Appeals, Fifth Circuit.

August 15, 2007.

Clement P. Donelon (argued), Roland Vaughn Cimini, Metairie, LA, Lisa Brener, New Orleans, LA, for Plaintiffs-Appellees.

Donna Rau Andrieu (argued), Graham Leaming Bosworth (argued), New Orleans, LA, for Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, BARKSDALE and GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Eddie Jordan, District Attorney for Orleans Parish, Louisiana, appeals the jury verdict and damages awarded against him, in his official capacity, for intentional discrimination on the basis of race against non-attorney staff in his office, in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and LA.REV.STAT. ANN. § 23:301 (Louisiana Employment Discrimination Law). Primarily at issue is whether sufficient evidence supports the verdict and compensatory damages. (Plaintiffs seek attorney's fees for this appeal.) AFFIRMED and REMANDED for determination of attorney's fees.

I.

In November 2002, Jordan was elected District Attorney (DA) for Orleans Parish, which primarily consists of New Orleans, Louisiana. Shortly thereafter, he appointed a transition team, which compiled a report of its recommendations for Jordan in his new position. The report included a cultural-diversity report recommending, within 100 days of his taking office, Jordan's hiring a staff reflective of New Orleans' racial composition. This recommendation was based on a Jordan campaign promise.

The transition team also formed a non-attorney staff development and retention committee, with Stephanie Butler serving as chairperson. In early December 2002, before Jordan took office, the non-attorney staff in the DA's office were instructed that, if they wanted to continue working there during Jordan's tenure, to schedule an interview and submit a current resume. Plaintiffs did so.

Butler, other members of her committee, and volunteers she selected, all of whom are black, conducted the interviews. Materials prepared for the process reflected interviewees were to be told "[t]he interviewers want[ed] to review [their] background, hear about [their] qualifications and skills, and anything else [they]'d like to tell [them], and to basically get a feel for [them] and [their] work ethic". The interviewees were evaluated through a numeric system based on their responses to the same seven questions.

Butler's recommendations, however, were not based on the interview evaluations. They resulted in the termination of Plaintiffs, all of whom are white, except one who is Hispanic. In response, Plaintiffs filed charges with the Equal Employment Opportunity Commission (EEOC), claiming Jordan fired them, inter alia, because of their race. In responding to the EEOC, Jordan asserted Butler's committee had not considered race, but had "considered, among other things, performance, employee efficiency, and previous experience in its determination of which employees would be retained". After investigating the claims, the EEOC found there was reasonable cause to believe Jordan, through his termination decisions, had discriminated against Plaintiffs because of their race. As a result of the EEOC's issuing a right-to-sue letter, Plaintiffs pursued their race-discrimination claims in district court.

At trial in 2005, the jury returned a verdict for Plaintiffs, finding: Jordan, in his official capacity, had discriminated against Plaintiffs on the basis of race, in violation of Title VII, 42 U.S.C. § 1981, and the Louisiana Employment Discrimination Law; and Jordan would have terminated eight Plaintiffs even if race had not been a motivating factor. The judgment included monetary damages, including compensatory damages, for those 35 Plaintiffs terminated solely because of race. DeCorte v. Jordan, No. 03-1239 (E.D. La. 30 Sept. 2005) (amended judgment); see also DeCorte v. Jordan, No. Civ.A. 03-1239, 2005 WL 1 No. 87-01179-CV-T-N,576309 (E.D.La.26 May 2005).

II.

At issue are whether: sufficient evidence supports the verdict; the district court erred in both admitting EEOC determinations and ruling a cultural-diversity report constituted an affirmative-action plan; admission of compensatory-damages testimony is reversible error and sufficient evidence supports those damages; statements in Plaintiffs' closing argument are reversible error; and Plaintiffs should be awarded appellate attorney's fees.

A.

Jordan first contends Plaintiffs failed to prove, by a preponderance of the evidence, a violation of Title VII, 42 U.S.C. § 1981, or the Louisiana Employment Discrimination Law. Claims of racial discrimination in employment, pursuant to 42 U.S.C. § 1981 and the Louisiana Employment Discrimination Law, are governed by the same analysis as that employed for such claims under Title VII. Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1284 n. 7 (5th Cir.1994) (§ 1981); Motton v. Lockheed Martin Corp., 900 So.2d 901, 909 (La.Ct.App.), writ denied, 904 So.2d 704 (2005) (Louisiana law).

Accordingly, Plaintiffs were required to establish, by a preponderance of the evidence, a prima facie case of racial discrimination by showing: (1) they were members of a protected group; (2) they were qualified for the positions they held; (3) they suffered an adverse employment action, such as termination; and (4) they were replaced by individuals outside the protected class. See Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th Cir.2003). Upon doing so, the burden shifted to Jordan to rebut Plaintiffs' prima facie case by articulating a legitimate, nondiscriminatory reason for his actions. Id. If Jordan met this burden, it shifted to Plaintiffs to show his proffered reason is a pretext for discrimination. Id.

On appeal, a verdict must be upheld unless, pursuant to de novo review, "a reasonable jury would not have a legally sufficient evidentiary basis to find" as it did. FED. R. CIV. P. 50(a)(1). The reviewing court draws all reasonable inferences in favor of the nonmovant, "disregard[ing] all evidence favorable to the moving party that the jury is not required to believe". Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). "`Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge'". Id. at 150, 120 S.Ct. 2097 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

It goes without saying that, when a race-discrimination claim has been fully tried, as has this one, this court "`need not parse the evidence into discrete segments corresponding to a prima facie case, an articulation of a legitimate, nondiscriminatory reason for the employer's decision, and a showing of pretext'". Bryant v. Compass Group USA Inc., 413 F.3d 471, 476 (5th Cir.2005) (quoting Vaughn v. Sabine County, 104 Fed.Appx. 980, 982 (5th Cir. 2004)), cert. denied, ___ U.S. ___, 126 S.Ct. 1027, 163 L.Ed.2d 855 (2006). Rather, review is to determine only whether the record contains sufficient evidence for a reasonable jury to have made its ultimate finding that Jordan's stated reason for terminating Plaintiffs was pretext or that, while true, was only one reason for their being fired, and race was another motivating factor. See id.

1.

As a threshold matter, Plaintiffs contend Jordan waived the right to contest the sufficiency of the evidence because his Rule 50 motion at trial was insufficiently specific. Rule 50(a)(2) requires a movant for judgment as a matter of law (JMOL) to "specify the judgment sought and the law and facts that entitle [him] to the judgment". Jordan's bare-bones Rule 50(a) motion falls far short of that. Instead, after Plaintiffs presented their case, he moved to dismiss all the Plaintiffs, stating: "[A]ll they have as far as evidence of discrimination are the numbers based upon what they saw in the . . . room when they received their papers and their subjective active belief that it was discrimination that motivated those decisions". The court characterized this as a motion to dismiss "all claims based on insufficient evidence . . . to show a prima facie case of racial discrimination". In responding, Plaintiffs did not challenge Jordan's lack of specificity under Rule 50(a). Before the case was submitted to the jury, Jordan "reurg[ed]" what the court described as his "Rule 50 motion", without adding any supporting facts or legal contentions.

Post-trial, Jordan submitted a renewed JMOL motion, pursuant to Rule 50(b), which was fully articulated. Moreover, Plaintiffs' opposition did not claim Jordan was raising issues for the first time. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980, 984 n. 1, 163 L.Ed.2d 974 (2006) ("`A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.'" (quoting Amendments to Federal Rules of Civil Procedure, 134 F.R.D. 525, 687 (1991))). As a result of this "fail[ure] to raise th[e] forfeiture claim in opposition to the Rule 50(b) motion . . . [Plaintiffs are] preclude[d from] raising [it] on appeal". Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 247 (5th Cir.2005). We caution that Rule 50(a) motions should be far more specific, as required by Rule 50(a)(2).

2.

Jordan's sufficiency-of-the-evidence challenge fails. Sufficient evidence was produced upon which a reasonable jury could have found discrimination.

All of the...