Barnes v. City of Cincinnati

Decision Date22 March 2005
Docket NumberNo. 03-4110.,No. 04-3320.,03-4110.,04-3320.
Citation401 F.3d 729
PartiesPhilecia BARNES, Plaintiff-Appellee, v. CITY OF CINCINNATI, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Richard Ganulin, City Solicitor's Office, Cincinnati, Ohio, for Appellant. Alphonse A. Gerhardstein, Laufman & Gerhardstein, Cincinnati, Ohio, for Appellee.


Richard Ganulin, Augustine Giglio, City Solicitor's Office, Cincinnati, Ohio, for Appellant. Alphonse A. Gerhardstein, Jennifer L. Branch, Laufman & Gerhardstein, Cincinnati, Ohio, for Appellee.

Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.*


MCKEAGUE, District Judge.

Phillip (now Philecia) Barnes ("Barnes") was living as a pre-operative male-to-female transsexual in 1999 when he failed the probationary period required to become a police sergeant in the Cincinnati Police Department ("CPD"). Barnes passed the sergeants exam, but failed the probationary period after he was subjected to a rigorous training program. Barnes brought suit against the City of Cincinnati in the United States District Court for the Southern District of Ohio, claiming that his failure of probation was due to illegal sex discrimination based on his failure to conform to sex stereotypes. The City argued that Barnes's failure was due to poor performance during his probationary period. The City filed pre-trial motions to dismiss and for summary judgment, both of which were denied. A jury returned a verdict in Barnes's favor in the amount of $320,511. The City filed a motion for Judgment as a matter of law or for a new trial, both of which were also denied. The district court awarded Barnes $527,888 in attorneys fees and $25,837 in costs. The City appealed the verdict on thirteen separate grounds and appealed the district court's award of attorneys fees. For the reasons set forth below, we AFFIRM the judgment of the district court.


Barnes started his career with the CPD in 1981 as a police officer. Barnes passed a promotional test to become a sergeant on July 13, 1998. Barnes placed eighteenth out of 105 officers who sat for the exam. At the time of his promotion, Barnes was a male-to-female transsexual who was living as a male while on duty but often lived as a woman off duty. Barnes had a reputation throughout the police department as a homosexual, bisexual or cross-dresser. No other male sergeant was known to be gay or have a feminine appearance. The Cincinnati vice squad photographed Barnes at night.

Following his promotion, Barnes was assigned to District One for his probationary period. The purpose of a sergeant's probationary period is to allow superior officers to observe the individual to determine whether the person should remain in the position. Eighteen standard traits are used for rating a probationary sergeant, with "judgment" being the most important category. Rating scales are used to measure performance and are described throughout the CPD's procedures. The City presented evidence at trial that sergeant is the most important rank in the organization and the City makes no exceptions for anyone. Even exceptionally good police officers may not possess the skills required to be a good supervisor. Barnes admitted the transition from officer to sergeant was more difficult than he expected. Barnes also stated there was a difference between an officer's and a sergeant's responsibilities and there were areas in which he needed to improve throughout the probationary period.

One of Barnes's alleged weaknesses was lack of "command presence." According to Sergeant Shearer, command presence means that an individual "projects a certain image of confidence." Several other officers testified that Barnes lacked command presence, which, according to them, meant that he did not have the respect of his subordinates. Barnes's expert testified that employers who use subjective factors, like "command presence" to evaluate an employee are engaging in stereotyping. Nearly every evaluator who spoke to Barnes's "command presence" defined the term differently.

Barnes was assigned to Lieutenant ("Lt.") Wilger when he arrived at District One. Lt. Wilger openly spoke about the number of lesbians in the CPD and did not believe he violated any policy by speaking about the sexual orientation of female police officers while on duty. Lt. Ross testified that when Barnes arrived at District One for his probationary period, people did not take him as seriously as they should. Barnes was living off-duty as a woman, had a French manicure, had arched eyebrows and came to work with makeup or lipstick on his face on some occasions. Within a month of Barnes's promotion, Lt. Wilger reported to the head of District One, Captain ("Capt.") Demasi, that Barnes was having trouble fulfilling his duties. Lt. Wilger noted that Barnes had trouble preparing documents, exercising proper judgment in the field and completing assignments on time. After the meeting, Barnes was placed in a new training program.

The new training program required Barnes's superiors to evaluate him on a daily basis over a three month period. A special six-page form was created to evaluate Barnes. The program was designed and approved by Chief Streicher, the CPD chief. The program required seven other sergeants to rate Barnes on a daily basis. Barnes was rated in each of the standard eighteen categories on a scale of zero to twenty-five. Barnes was also told not go into the field alone, was required to wear a microphone at all times and ride in a car with a video camera during the last weeks of his probation. No other sergeants were evaluated in this manner. Barnes claimed that this experience was demeaning and it made those around him think that he was incompetent and ignorant. Barnes did admit, however, that he did not "want to speculate" on the issue of whether he was singled out based on his transsexual characteristics. Sergeant Ford testified that "[t]he purpose of the program was to scrutinize him and to document every mistake that he made so that he could be failed on probation."

Nearly a month into Barnes's evaluation program, he was stressed and "flustered" from his assignment to the program. Barnes was referred to CPD psychologist, Dr. James Daum, who recommended that Barnes receive counseling. Dr. Daum sent his report to Chief Streicher because he wanted the police division to know that Barnes needed help. Barnes claimed that many of his problems during probation were related to his elevated stress level, which would not have occurred but for his superiors singling him out in the manner they did.

Barnes received twenty-two evaluations from five different sergeants between February 21 and April 14, 1999. On April 15, Capt. Demasi recommended to Chief Streicher that Barnes fail probation because he had shown little improvement in his performance and because Barnes had violated CPD rules and procedures. Chief Streicher denied Capt. Demasi's recommendation. Barnes was instructed to choose a mentor and he chose Sergeant Hoffbauer. Sergeant Hoffbauer was Barnes's last evaluator, and evaluated Barnes between April 20 and May 18. Hoffbauer initially gave Barnes mediocre evaluations, but gave Barnes scores of zero in some categories by the middle of May.

In June, Colonel ("Col.") Twitty instructed Capt. Demasi to submit a second report recommending that Barnes fail probation. Capt. Demasi reiterated his concern over Barnes's lack of improvement and detailed several instances of dishonesty. Capt. Demasi also noted two instances where Barnes failed to comply with grooming and uniform standards, a day where Barnes committed multiple radio infractions and Barnes's failure to display appropriate "command presence." Chief Streicher relied on Col. Twitty's report and approved Barnes's failure of probation on June 22, 1999.

Chief Streicher testified at trial that Barnes had a lack of command presence and that he flunked Barnes from probation. Sergeant Ford, one of Barnes's reviewing sergeants, testified that Barnes was improving over the course of the training and that Barnes was placed in the special program to "target him for failure."

The City agrees that Col. Twitty told Barnes he did not appear to be "masculine," and that he needed to stop wearing makeup and act more masculine prior to Barnes's promotion. Col. Twitty stated the objective of such statements was to correct Barnes's "grooming deficiencies." Col. Twitty also stated that the decision to fail Barnes from probation had nothing to do with Barnes's transsexual characteristics. However, Sergeant Ford warned Barnes that he heard rumors that Barnes was going to fail probation because Barnes had not been acting masculine enough.

Barnes's expert, industrial psychologist Dr. Cranny, found that Barnes met the general standard identified for passing sergeant's probation, as his scores were above the minimum required range for passing. Barnes's expert testified that he was unable to understand how Barnes could have failed probation. Barnes's scores on the sergeant evaluation tests were higher than at least one other probationary sergeant. Barnes was the only person to be put in a Sergeant Field Training Program and the only one to fail probation between 1993 and 2000.

Barnes challenged his demotion from sergeant under Title VII and the Equal Protection Clause. The City filed a motion to dismiss and a motion for summary judgment, which were both denied by the district court. The City argued that a legitimate reason, poor performance, justified the demotion in this case. The claims were submitted to a jury, which returned a verdict in Barnes's favor. The jury awarded $150,000 in compensatory damages, $140,000 in front pay and $30,511 in back pay. The City moved for judgment as a matter of law, which was also rejected...

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