Garner v. Giarrusso, 75-2771

• Citation: 571 F.2d 1330
• Decision Date: 26 April 1978
• Docket Number: No. 75-2771,75-2771
• Parties: 20 Fair Empl.Prac.Cas. 1314, 16 Empl. Prac. Dec. P 8274 John GARNER, Plaintiff-Appellee, v. Clarence B. GIARRUSSO, Individually and as Superintendent of New Orleans Police Department, et al., Defendants, City of New Orleans, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1330

571 F.2d 1330

20 Fair Empl.Prac.Cas. 1314, 16 Empl. Prac.

Dec. P 8274

John GARNER, Plaintiff-Appellee, v. Clarence B. GIARRUSSO, Individually and as Superintendent of New Orleans Police Department, et al., Defendants City of New Orleans, Defendant-Appellant.

No. 75-2771.

United States Court of Appeals Fifth Circuit.

April 26, 1978.

Michael A. Starks, Joel P. Loeffelholz, Asst. City Attys., Philip S. Brooks, City Atty., New Orleans, for defendant-appellant.

John B. Garner, pro se.

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

Before TUTTLE, CLARK and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

This is a case in which Garner, a former member of the New Orleans Police Department, alleges racial discrimination in the course of his employment and in his discharge from the force. More specifically, Garner contends that racial discrimination in the police department infected the transfer and assignment practices, deprived him of an opportunity to take an examination for promotion, caused him to undergo psychological re-evaluation, and resulted in his ultimate discharge in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission (E.E.O.C.). He brought this suit against the city of New Orleans, the superintendent of police, the mayor, the New Orleans Civil Service Commission, and the Commission members under Title VII of the Civil Rights Act of 1964, as amended in 1972, 42 U.S.C. § 2000e, and under 42 U.S.C. §§ 1981 and 1983 to seek reinstatement and back pay as well as declaratory, injunctive, and other relief. After pretrial dismissals and summary judgment as to some defendants, the case proceeded to trial in the United States District Court for the Eastern District of Louisiana against only the city of New Orleans.

The District Court, sitting without a jury, found that Garner had been discriminated against in his transfer and re-evaluation but that his discharge was the result of Garner's refusal to obey orders and was not racially premised. To compensate Garner for the mental anguish and humiliation he endured during the course of his employment, the court, relying principally on § 1981, awarded Garner $5,000. The city filed its appeal to challenge the propriety of an award of monetary damages against a municipality and to seek reversal of the district court's findings of racial discrimination. The city further contends that res judicata or collateral estoppel should have barred the suit initially because Garner sought and received a full hearing before the Civil Service Commission and that body determined that he had been discharged for cause and not because of racial discrimination. Garner has filed a cross-appeal to seek a reversal of the district court on the discharge, reinstatement, and back pay issues.

I. STATEMENT OF FACTS

When Garner joined the police force in 1965, he served in an all-black unit known as the Project Detail. ¹ In 1968 he was transferred to the K-9 Corps, where he was the only black among 13 to 16 men. In September 1972 he was transferred, over his strenuous objections, to the Fourth District. He was suspended and ultimately discharged in May 1973 after failing to respond to an assigned call. Testimony at trial described incidents which occurred during each of these assignments, but the bulk of the evidence focused upon alleged discrimination during Garner's service in the K-9 Corps and in the Fourth District.

The district court found that Garner encountered discrimination from the very moment he joined the K-9 Corps. As a trainee, Garner was required to spend a disproportionate amount of time in supervising car washing, an unpopular task among the new officers. During his job training program, Garner was virtually ignored if his white classmate failed to show up. Garner also failed to receive the customary two-week on-the-job training with an experienced officer. In fact, all of the experienced men "pulled up sick" when he first reported for duty. The plaintiff attempted to show that he was discriminated against in later assignments which he received in the K-9 Corps, but the district court found that Garner received no more than his share of unpopular assignments after training. However, while other officers worked in teams, Garner was always alone. Indeed, the district court described Garner as somewhat of a loner. He did not socialize or joke with his co-workers, but remained aloof. His work, though, was satisfactory.

During the course of his service in the K-9 Corps, Garner complained occasionally about police department policies which he felt reflected racial prejudice. One of his main complaints was that the police failed to respond to calls in his neighborhood, which was in the vicinity of the Fisher Housing Project, a high-crime area. Consequently Garner was forced to come to the aid of his neighbors during his off-duty hours. This antagonized some of his neighbors, who were less than fond of police officers. As a result of what Garner viewed as police indifference, he felt that he and his family were placed in danger. Garner claimed that he had been shot at near his home, although some testimony contradicted this assertion. Garner voiced his complaint to the superintendent of police and others, but apparently the situation did not improve, at least in Garner's opinion.

As a member of the K-9 Corps, Garner was entitled to transport his dog to and from work in a patrol car and to keep the car during his off-duty hours. However, Garner felt that the car drew attention to the fact that he was a policeman and placed his family in greater jeopardy. He chose instead to use his personal car. The other men in his unit used the patrol cars and also collected an additional $30 per month by submitting a voucher which stated that they used their personal cars to transport their dogs to and from work. Garner refused to follow this practice because he felt that it was dishonest. His co-workers resented his punctiliousness either as an insult to their integrity or as a threat to their $30. Shortly before his transfer, someone put sugar in the gas tank of his personal car while it was parked in the police garage. Naturally Garner assumed that the prank was the work of his fellow K-9 officers. He reported the incident but requested that no disciplinary action be taken.

The situation climaxed in the transfer of Garner out of the unit. His superior officer testified that the transfer was necessary because Garner caused dissension in the K-9 unit. However, the district court found that the transfer was based not on any poor performance by Garner but on the attitude of the other men. Because it believed that Garner's character traits would have been accommodated had he been white, the court held that the transfer was in fact racially discriminatory. If Garner's refusal to sign the voucher was the source of the dissension, the district court stated, the wording of the voucher should have been changed so as to acknowledge that the stipend could be collected even when officers used a patrol car. Instead the supervisors permitted Garner's co-workers to dictate transfer policy rather than insisting that racial differences be tolerated.

In an effort to prevent his transfer, Garner met with Police Superintendent Giarrusso, who asked him to "search his soul" for evidence of joint responsibility for the dissension. Giarrusso had known Garner earlier and had always found him uncommunicative. At this meeting Giarrusso offered to let Garner select his next assignment, but Garner insisted that he should be permitted to stay in the K-9 Corps. Instead he was assigned to the Fourth District, an area which encompassed both his home and the Fisher Project. Fearing that he and his family would be in even greater danger now, Garner asked for an immediate transfer. He complained to the Civil Service Commission, the mayor, the city Human Relations Commission, and finally filed a charge with the E.E.O.C. Garner attempted to prove at trial that his assignment breached a department policy against assigning an officer to his own neighborhood. However, the city showed that many members of the Fourth District were area residents and that they were often selected on that basis to assure continuity of police service if the bridges which connected that area to the rest of the city were ever washed out. The district court held that the assignment was nondiscriminatory.

Shortly after his assignment to the Fourth District, Garner was ordered to undergo psychological re-evaluation. Superintendent Giarrusso took full responsibility for the order and based his decision to do so on what he viewed as personality changes in Garner and on a letter of complaint written by Garner. The district court held that the asserted reasons for the re-evaluation did not warrant that action and that the decision was discriminatory. Garner's personality, by Giarrusso's own testimony, had remained very much the same. Garner was required to take 18 days of sick leave while the psychological testing was accomplished. He was scheduled to take an examination for promotion during this time but was unable to obtain official permission to leave home for the exam. Consequently, he missed the exam and claims that the re-evaluation was ordered for that precise purpose. The district court made no express fact finding on this point, but did say that Garner appeared to be the victim of administrative inefficiency or the classic runaround.

Garner's brief service in the Fourth District was not a pleasant time for him. His fears about his safety increased and perhaps became almost overwhelming. He felt that his superiors were discriminating against him and that his fellow officers harassed him. His earlier complaints about the Fourth District's failure to respond to calls in his area were well known by his co-workers. Again he was required to patrol alone...