Cooper v. Allen

• Citation: 493 F.2d 765
• Decision Date: 06 June 1974
• Docket Number: No. 73-2849.,73-2849.
• Parties: Robert J. COOPER, Plaintiff-Appellant-Cross Appellee, v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, et al., etc., Defendants-Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 765 (1974)

Robert J. COOPER, Plaintiff-Appellant-Cross Appellee, v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, et al., etc., Defendants-Appellees-Cross Appellants.

No. 73-2849.

United States Court of Appeals, Fifth Circuit.

May 6, 1974.

Rehearing and Rehearing Denied June 6, 1974.

Robert Neil Dokson, Michael H. Terry, David A. Webster, Elizabeth R. Rindskopf, Atlanta, Ga., for plaintiff-appellant.

Robert Wiggins, Henry L. Bowden, Atlanta, Ga., for defendants-appellees.

Before GEWIN, GOLDBERG and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 6, 1974.

CLARK, Circuit Judge:

On the first appeal of this case asserting racial discrimination in employment,¹ we invalidated a testing procedure and remanded the cause to the district court with directions to grant relief to plaintiff unless the City of Atlanta could prove by clear and convincing evidence that when Robert J. Cooper sought employment in 1969 as a municipal golf professional he would not have been hired even if the City had not used the Otis-Lennon Mental Ability Test as a prerequisite for the position, and to reconsider both the denial of attorneys' fees to Cooper and the assessment of costs. Cooper v. Allen, 467 F.2d 836 (5th Cir.1972). On remand, the district judge awarded Cooper 12,000 dollars in attorneys' fees "as a result of his success through the first appeal," but denied his request for back pay and injunctive relief because the City was found to have discharged its burden of proving that James Russell Hazelwood, the golf professional whom defendants had hired for the position sought by plaintiff, was better qualified for the job. Cooper appeals from that judgment asserting error in the district court's denial of individual relief, in its refusal to award additional attorneys' fees incurred on remand, and in its assessment of one-half of the costs against him. The City cross-appeals from the award to Cooper of attorneys' fees. We affirm on both appeals.

It is admitted that when Cooper applied for the position of golf pro in 1969, Atlanta required: (1) a satisfactory score on the now-discontinued Otis test; (2) age between 25 and 40; (3) at least five years' experience as a golf pro or an assistant golf pro; (4) Class A membership in the PGA, or eligibility therefor; and (5) a successful oral interview. Having rejected the use of the Otis test, but lacking a basis for determining the final consequence of this adjudication, our prior mandate sent the cause back for further fact development with the provision that, to prevail, Atlanta must show by clear and convincing proof "that, in the light of the enumerated qualifications, Cooper would not have been entitled to the job even had there been no requirement to take and pass the Otis test. That is, the City must show that the person actually hired was on the whole better qualified for the job." 467 F.2d at 840. The test was also restated thus: "Since there was but one job opening at the time . . ., the City's burden . . . is to show that Cooper was not the most qualified applicant." 467 F.2d at 840 n. 3.

On the basis of facts adduced at an evidentiary hearing held after remand, the district court concluded that "Hazelwood's prior experience . . . of having the responsibility of a golf course and running a pro shop outweighs the plaintiff's work history as a pro or assistant pro and is clear and convincing proof that Hazelwood was better qualified for the 1969 vacancy . . . ." Accordingly, the court declined to award back pay or enter an injunction. Cooper's instant appeal broadly attacks this unfavorable finding of fact. He first contends that the district court erred in relying on Hazelwood's previous experience, without assessing his Hazelwood's prior performance and ability to perform in the new position. He also asserts that while experience is a facially neutral requirement, it operates unlawfully here to perpetuate past racial discrimination since until recently blacks were traditionally foreclosed from obtaining experience as golf pros. Second, Cooper urges that the City failed to prove Hazelwood was the more qualified by clear and convincing evidence. Cooper's third assignment of error is that the district judge improperly admitted hearsay evaluations of Hazelwood's previous job performance and refused to admit testimony from a banker about Cooper's business ability.

The district judge heard testimony from Atlanta Parks and Recreation Department officials and a practicing municipal golf professional about the duties and responsibilities of a City golf pro which demonstrated that teaching lessons only occupies about five percent of his time, whereas the bulk of his duties requires skills wholly unrelated to athletic ability. Of primary importance is a measure of merchandising expertise and financial ability. Golf professionals in Atlanta are principally engaged in collecting and accounting to the City for approximately 40,000 dollars a year in green fees. In addition, he operates concession stands and the pro shop, which he must personally stock with golf equipment and other merchandise from his own finances. He is obliged to keep the course open for business during day-light hours seven days a week. The pro also exercises varying degrees of authority over the entire operation of the golf course from supervising golf starters, assistant pros, and building custodians; to advising on course maintenance and upkeep; to assisting in the organization and management of golf tournaments.

It was against this backdrop that the court below assessed the comparative abilities of Hazelwood vis-a-vis Cooper. This task was to be framed "in light of the enumerated qualifications." Both men fit the age and PGA membership prerequisites. Evaluation of their oral interviews was considered to be impracticable. Consequently, the district judge was left "to consider each man's experience as one of the qualifications in determining which one was better qualified for the 1969 vacancy." Hazelwood, whose educational attainments included a high school diploma and fourteen months of legal training, had been successively employed over a nine-year period by Lockheed Aircraft Corporation, a financing company, and the United States Post Office before he became a golf professional in 1962 at the Toccoa Country Club, an organization of approximately 175 to 250 members which also had approximately 200 non-member players. During his four-year tenure, Hazelwood's duties were gradually expanded until, when appointed golf course superintendent and club manager at Toccoa, he was responsible for the club's entire golfing and social activities. He next spent two years as golf pro and golf course superintendent at the Conley Depot Golf Club, an army-affiliated organization which had about 300 members and a pro shop that averaged 3,300 dollars in gross sales per month. At both courses he was sole proprietor of the pro shop and also was charged with maintaining the condition of the golf course, purchasing and maintaining equipment, and the hiring, firing and supervision of course personnel. In addition to his business obligations, he gave individual golf lessons, conducted clinics for women and children, attended PGA-sponsored seminars and its one-week business school, and competed in several hundred golf tournaments during his years at Toccoa and Conley.

Cooper's association with golf began as a player at age seven. He caddyed thereafter as he completed ten and one-half years of elementary schooling in Jacksonville, Florida. As a teen-ager he worked during one summer in a New York City golf shop where he sold golf items and helped the owner, Zeke Hartsfield, give lessons. Cooper returned to Atlanta in 1954 and labored for two years in the repair shop at the Druid Hills Golf Club. He cleaned and repaired clubs and informally offered players tips and lessons. He was variously employed over the next ten years as a truck driver, Fuller Products vendor and a used car salesman. During this time he occasionally worked on the greens and played at the private, predominantly black New Lincoln Golf Club and regularly gave golfing instruction upon request. In 1968 he attended the one-week PGA business school and completed a 30-day correspondence course from the Etonic Shoe Company, which was primarily oriented to personality development and the sale of golf products. From 1969 until the first trial he tried unsuccessfully to establish a used car business on borrowed funds. Cooper's acquaintance with golfing competition included fifteen USGA tournaments and several local tournaments in Jacksonville. He had also participated in the organization of one local golf tournament.

This record furnishes more than ample support for the district court's conclusion that Hazelwood clearly and convincingly was, on the whole, better qualified to serve as an Atlanta municipal golf professional. Cooper charges, however, that a comparative evaluation grounded upon previous golf experience discriminates against him on account of his race. It is not arguable that blacks have in the past been excluded from PGA membership and competition and generally relegated to the role of caddy and greenskeeper; but, this to the contrary notwithstanding, the determinative shortcomings in Cooper's employment resume are not attributable either to his race or to past racial discrimination.

In strict compliance with our prior mandate, the district court disregarded race and instead weighed the evidence tendered by the City to determine whether "in light of the enumerated qualifications" the defendants had sustained their burden of proof. We cannot say that the court accorded any prima facie superiority to the fact that Hazelwood's purely golfing experience was greater. Furthermore, contrary to Cooper's assertion on this appeal, the district judge explicitly refused to consider the hearsay, written reports of Hazelwood's...