78 F.3d 968 (5th Cir. 1996), 94-50595, Polanco v. City of Austin, Tex.

Docket Nº:94-50595.
Citation:78 F.3d 968
Party Name:, 34 Fed.R.Serv.3d 1007, Hector POLANCO, Plaintiff-Appellee, v. CITY OF AUSTIN, TEXAS, Defendant-Appellant.
Case Date:March 28, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 968

78 F.3d 968 (5th Cir. 1996)

, 34 Fed.R.Serv.3d 1007,

Hector POLANCO, Plaintiff-Appellee,

v.

CITY OF AUSTIN, TEXAS, Defendant-Appellant.

No. 94-50595.

United States Court of Appeals, Fifth Circuit

March 28, 1996

Page 969

[Copyrighted Material Omitted]

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Connie Ode, Dana K. Johnson, Asst. City Attys., Austin, TX, for appellant.

D. Phillip Adkins, Gregory K. Zaney, Austin, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

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Before POLITZ, Chief Judge, and WISDOM and STEWART, Circuit Judges.

STEWART, Circuit Judge:

In this employment discrimination action, Hector Polanco, a Mexican American police officer, alleges that he received more severe disciplinary treatment than his colleague because of his national origin. The City of Austin terminated Polanco after seventeen years with the Austin Police Department (APD), while giving his colleague only a written reprimand although the conduct which provoked disciplinary action was virtually the same for both men. Polanco sued the City under Title VII (42 U.S.C. § 2000e-5) and the Civil Rights Act (42 U.S.C. §§ 1981, 1983). The jury found impermissible discrimination and awarded Polanco $75,000 for expenses incurred, $150,000 for emotional pain and suffering, and $125,000 for injury to his reputation. The district court partially granted the City's motion for remittitur.

The City appeals the district court's remitted judgment of $290,000 as well as the $28,337 award for attorneys' fees and costs. On appeal, the City challenges the district court's denial of its motion for judgment as a matter of law and/or alternatively its motion for a new trial. Likewise, the City contests the district court's exclusion of testimony of a witness who allegedly could have proven that Polanco did not have a reputation for truthfulness, and therefore, Polanco's reputation sustained no injury from the City's actions. The record amply supports the decisions of the district court. Therefore, we affirm the judgment entered in favor of the plaintiff.

FACTS

The relevant facts concern Polanco's experience and reputation in the homicide division. Polanco joined the Austin Police force in March, 1976. Although Polanco worked in several units within the police department, Polanco spent three and one-half years working in the homicide division as an investigator before being promoted to the position of Senior Sergeant, which he held at the time of his termination.

While in the homicide division, Polanco developed a reputation of being a premier investigator. He received over forty-five commendations during his seventeen year tenure on the force, some of which he received for exemplary homicide investigations conducted when he was not assigned to the homicide division.

Several commendations arose because of Polanco's assistance with victims who could speak only Spanish. Polanco openly demonstrated his strong affinity with Hispanics and his Mexican heritage. In fact, Polanco became known around the APD as being outspoken on minority issues, especially those involving Hispanics. Polanco's concern for Hispanics resulted in a conflict with his supervisor, Lieutenant Andy Waters, regarding Waters' use of the term "misdemeanor murder." A misdemeanor murder is an informal, derogatory term used by some Anglo APD officers to refer to murders of minority victims. The term is consistent with the perception held by many that murders of minorities received low priority in the APD, and consequently, received less funding, fewer resources, and less time for investigating.

In February 1992, Polanco was assigned as the head of the task force devoted to solving the "yogurt shop murders," a highly publicized group of murders in December, 1991, in which four teenage girls were murdered, mutilated, and burned as they closed the yogurt shop where they worked. Polanco obtained a written confession for the murders from a suspect named Alex Briones in March, 1992. The confession was thrown out after Briones failed a polygraph test regarding the confession. 1 Polanco was removed as head of the task force shortly thereafter.

Suspecting that Polanco coerced the Briones' confession, the Travis County District Attorney initiated an investigation. The grand jury did not return an indictment. When the district attorney completed its investigation without taking any other action,

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the internal affairs division of the APD inquired into the alleged misconduct. 2

The district attorney's and the internal affairs division's investigations blossomed into a probe of both Polanco and Sergeant Brent McDonald surrounding the confession they received for the February, 1991 murder of a Travis County Sheriff's Deputy named William Redman. Polanco was not working in the homicide division 3 or connected with the Redman investigation at the time he assisted McDonald, the investigator in charge of the case, in eliciting a confession from suspect John Salazar. Salazar began giving McDonald a statement but terminated the interview and refused to complete the statement.

Approximately three hours later, however, Polanco elicited a signed confession from Salazar. The confession specifies that both McDonald and Polanco gave Salazar his Miranda warnings but that Salazar gave his statement to McDonald. Polanco's involvement in the interview is undeniable because some descriptions in the statement match almost exactly the wording of the notes Polanco took during the interview. Unbeknownst to either Polanco or McDonald, about fifteen minutes before Salazar signed the confession, the true perpetrators confessed to the Redman murder. Salazar's confession eventually was declared "false" because Salazar was actually in APD custody at the time the murder took place. Despite the falsity of the confession, Polanco received the Department's Basics Award because of his assistance with the Redman investigation.

During the trial of the first suspect (Jose Flores) regarding the Redman murder, Polanco testified that he had not obtained a confession from Salazar. The testimony reads as follows:

Q. And at any point did you go into the interview room where Sergeant McDonald was interviewing Mr. John Salazar?

A. Yes, ma'am.

Q. Did you ever take a written statement or any sort of written confession or written statement from John Salazar?

A. No, ma'am. I didn't.

Q. Did you speak with him?

A. Yes, ma'am. I did.

. . . . .

CROSS EXAMINATION

Q. Sergeant, did you try to take a statement from him?

A. No. Sir. I was uniform line supervisor. I was more in there for support.

Q. You were pinch hitting that night, right?

A. That's correct.

Q. Okay. Did you all try to get a written statement from him?

A. He was interviewed, yes, sir, by several investigators that I know of and Sergeant McDonald as well as myself. Yes, sir.

Q. And was that in an effort to take a written statement from him?

A. Yes, sir.

Q. Did you ever do a draft of a written statement?

A. No, sir. I did not.

Q. Did Sergeant McDonald?

A. Not to my knowledge.

Q. Did you ever--did John Salazar ever sit down and write anything out in his own hand?

A. Not to my knowledge.

In the same trial, McDonald and Salazar testified that Salazar had made a confession to Polanco and McDonald. McDonald's testimony in the Flores' trial reads as follows:

Q. At some point did you attempt to take a written statement from Mr. Salazar?

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A. Yes, ma'am.

. . . . .

Q. And did you in fact complete and take a written statement from Mr. Salazar?

A. No, ma'am.

. . . . .

Q. Did you in fact ever complete a statement from John Salazar, give it to him to look over and him sign it and then notarize it?

A. No, ma'am.... John Salazar terminated the interview.

CROSS EXAMINATION

Q. And no one ever put anything down on paper during this time?

A. Formally or informally? There were notes taken. There were, you know, notes taken, but as far as a formal confession, completely filled out, notarized as she mentioned, that did not occur.

Q. Okay. Were these drafts, draft statements that were taken?

A. No, sir.

Q. What were they, just your notes?

A. They would have just been notes of what he was saying at the time.

Contrary to this testimony, in the second suspect's (Ernest Perez) case, just twenty-one days later, McDonald testified that he did not take a statement from Salazar, and further said that he just listened to what Salazar had to say.

Q. Officer, the first person who you interviewed as far as the people there at the apartment was Mr. Salazar; is that correct, Officer?

A. Yes, sir.

Q. Sergeant, I apologize. Sergeant, did you take a written statement from Mr. Salazar?

A. No, sir.

Q. You just listened to what he had to say; is that right?

A. Yes, sir.

On April 15, 1992, McDonald discovered in his office the confession Salazar made to Polanco and the notes Polanco made during the interview. The phrase "Not Needed" appeared in McDonald's handwriting on the outside of the envelope containing the false confession and notes.

The internal affairs division charged Polanco with aggravated perjury, with failure to supplement reports, and with bringing discredit upon the police force. The division charged McDonald with bringing discredit upon the APD. The APD and the Disciplinary Review Board sustained the charges. Polanco was suspended indefinitely after rejecting a thirty-day disciplinary suspension. McDonald agreed to a written reprimand. Although Polanco received reinstatement on appeal, the APD refused to allow Polanco to return to the homicide division. Instead, the APD assigned him to a walking unit.

Polanco sued the City, alleging employment discrimination. After a three-day trial, the jury awarded Polanco $75,000 for expenses incurred, $150,000 for emotional pain and suffering, and $125,000 for injury to his reputation. The court partially granted the City's motion for remittitur and entered a...

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