Griffin v. City of Omaha, 85-1455

• Decision Date: 03 April 1986
• Docket Number: No. 85-1455,85-1455
• Citation: 785 F.2d 620
• Parties: 40 Fair Empl.Prac.Cas. 385, 39 Empl. Prac. Dec. P 35,928, 40 Empl. Prac. Dec. P 36,151 Marjorie GRIFFIN and Sandra McWhorter, Appellants, v. CITY OF OMAHA, a municipal corporation; Robert Wadman, in his capacity as Chief of Police of the City of Omaha; James Doyle, in his capacity as Personnel Director of the City of Omaha, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 620

785 F.2d 620

40 Fair Empl.Prac.Cas. 385,

39 Empl. Prac. Dec. P 35,928,

40 Empl. Prac. Dec. P 36,151

Marjorie GRIFFIN and Sandra McWhorter, Appellants, v. CITY OF OMAHA, a municipal corporation; Robert Wadman, in

his capacity as Chief of Police of the City of

Omaha; James Doyle, in his capacity as

Personnel Director of the City

of Omaha, Appellees.

No. 85-1455.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1985.

Decided March 4, 1986.

Rehearing and Rehearing En Banc Denied April 3, 1986.

Robert V. Broom, Omaha, Neb., for appellants.

Denise A. Hill, Omaha, Neb., for appellees.

Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Marjorie Griffin and Sandra McWhorter appeal the judgment of the district court denying their claims of racial and sexual discrimination brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2(a)(1)-(2) (1982), and 42 U.S.C. Secs. 1981, 1983 (1982). The appellants' claims arise out of their termination from the Omaha Police Department recruit class of 1981 for failure to meet the minimum firearms proficiency standards. Griffin and McWhorter, both black women, contend that they received inadequate firearms training, qualitatively and quantitatively inferior to the training provided other recruits; that they were terminated from the recruit program for failure to satisfy firearms qualification standards while a similarly situated white male was retained in the program; and, that they were subjected to a racially discriminatory work environment. In addition to their claims of disparate treatment and discriminatory work environment under Title VII, and intentional discrimination under sections 1981 and 1983, the appellants contend that the Police Department's facially neutral firearms qualification requirements disproportionately exclude blacks and women and thereby violate the disparate impact provisions of Title VII. The appellants argue on appeal that the district court's findings, that they were not provided inferior training nor terminated from the recruit program because of their race or sex, nor subjected to a discriminatory environment, are clearly erroneous, and they seek reinstatement into the police department. On review, we are left with the firm impression that a mistake has been made and that certain findings of the district court are clearly erroneous. We reverse the judgment and remand the cause for further consideration consistent with this opinion.

The Omaha Police Department's (OPD) 1981 recruit class consisted of 34 individuals: fourteen white males, twelve black males, three hispanic males, two white females and three black females. The 1981 recruit class had the greatest number of black officers in the OPD's history. Twenty-five members of the 1981 recruit class graduated; all nine recruits terminated were black, and included all three black females. ¹

In October 1980, approximately one year before the appellants joined the OPD as recruits, the City of Omaha (City) entered into a consent decree which required an increase in black employment in the OPD. ² The district court found that the hiring requirements of the consent degree had caused considerable racial tension within the OPD ranks. The district court further found that rumors had circulated among officers and recruits that black recruits would be "washed out" of the 1981 recruit program. ³ Additionally, a number of black recruits had been experiencing academic difficulties and had expressed concern to members of the Brotherhood of Midwest Guardians, an organization of black police officers, that black recruits were being ignored in class and were receiving training inferior to that provided white recruits. The district court found that the defendants, upon learning of the black recruits' concerns, took steps to improve the work atmosphere and promote more positive feelings within the ranks. In addition, the OPD administration, along with the City's Affirmative Action Officer and the Midwest Guardians, began actively to monitor the situation. The Public Safety Director, in charge of the OPD, personally investigated the matter and discussed it with the Midwest Guardians and the OPD training personnel. Several minority recruits testified at trial that they did not perceive nor were they subjected to racial hostility from the training staff.

The bulk of the evidence presented at trial concerned two issues: what were the OPD firearms proficiency standards, and did the appellants meet those standards; and, whether the training provided the appellants and other recruits was adequate to qualify with firearms.

Before the 1980 consent decree, the OPD had no written firearms standards. However, it regularly and uniformly had terminated any recruit who failed to achieve a score of 65 on any of six pre-final qualification shoots, with one make-up shoot allowed to achieve a passing score. A written policy was drawn up in December 1980 which set the minimum record score--the original shoot or the make-up shoot--for any pre-final qualification shoot at 65, and permitted only one make-up shoot for any one pre-final qualification shoot failed. The written policy also required a recruit to maintain an average of 70 or better in the six pre-final qualification shoots. Additionally, the policy provided that any recruit who failed to score 70 or better on any qualification shoot would be given necessary corrective assistance. If a recruit's record score fell below 65, the recruit would be recommended for termination; if the recruit's average score for the six pre-final qualification shoots was below 70, the recruit also would be recommended for termination. Lastly, the policy provided that a recruit's score on a final qualification shoot would be averaged with the pre-final scores to determine the recruit's "shooting score"; no make-ups would be allowed for this final qualification shoot. The policy did not set any specific score that must be achieved on the final shoot. Addendum to Appellants Opening Brief at 40.

The recruits underwent firearms training and practice prior to the pre-qualification shoots. Neither Griffin nor McWhorter had used a firearm before. After the first pre-final qualification shoot, approximately seven weeks into the training, no regularly scheduled practice sessions were provided. The appellants testified that the training instructors failed to criticize their technique or provide instruction during the training and practice phase despite their evident problems with firearms. They further testified that the training officers did not assist them properly to correct their errors during the first five pre-qualification shoots, despite the fact that Griffin failed one shoot and McWhorter failed three of the first five shoots.

On November 5, 1981, Griffin, McWhorter and Rosalyn Cotton, ⁴ the third black female, failed the sixth pre-final qualification shoot. For the first time, a white male, William Dussetschleger, failed as well. The district court found that all four recruits were thereafter recommended for termination. The three black female recruits complained to the Midwest Guardians that the firearms training they had received was inadequate; the Guardians in turn brought these complaints to the attention of the OPD administration. After considering these complaints, the OPD administration revised the firearms qualification policy and permitted all four recruits to remain in the recruit class. Under the revised standard, recruits would be certified upon completion of the entire training if they achieved a minimum average of 70. Addendum to Appellant's Opening Brief at 43. The administration ordered the training officers to give the four recruits additional assistance after hours to prepare them for the final qualification shoot. The Acting Chief of Police also ordered the training officers to submit to him written reports indicating the nature of the recruits' problems and their progress.

When it became apparent that Griffin, McWhorter and Rosalyn Cotton were having difficulty with firearms training, Maggie Heaston, the City Affirmative Action Officer, suggested to Public Safety Director Joe Friend a number of additional methods to remedy the inadequate firearms training allegedly provided the black women recruits. ⁵ Friend rejected these suggestions without discussion.

Consistent with Friend's orders, the four recruits were provided additional training. Recruit Dussetschleger was assigned to the chief firearms training officer, Officer Benak; Griffin and Cotton were assigned to Officer Pekula, and McWhorter was assigned to Officer Schlotman. Louis Dirks, Training Officer at the Law Enforcement Training Center at Grand Island, Nebraska, testified as appellant's firearms expert. According to Dirks, who had reviewed the training officers' reports to the Acting Chief of Police, Officer Benak's reports indicate that he made an early diagnosis of Dussetschleger's problems and devised a remedy which proved successful. Dirks complimented the quality and specificity of Benak's diagnosis and suggested remedies. Dussetschleger passed the final qualification shoot with a score of 87.2, which gave him an overall average score for the qualification shoots of 76.1.

On the other hand, Dirks criticized the reports filed by Officers Pekula and Schlotman. He testified that they did not specifically diagnose the recruits' individual problems, but merely reiterated "basics," and suggested inappropriate remedies. The officers admitted at trial that their reporting was "negligent," but both provided an oral account of their diagnoses of the recruits' problems. Griffin scored a 64.8 on the final qualification shoot, which brought her overall average to 73.1. McWhorter scored a 47.6 on the final qualification shoot, which brought her overall average to 66.3. Cotton also failed to score a 65 on the final shoot, and her...