Palmer v. Kelly, s. 92-7170

• Decision Date: 18 March 1994
• Docket Number: 93-7035,Nos. 92-7170,s. 92-7170
• Citation: 17 F.3d 1490
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 377, 64 Empl. Prac. Dec. P 42,971, 305 U.S.App.D.C. 137 Gary L. PALMER, Appellee, v. Sharon Pratt KELLY, Mayor, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1490

17 F.3d 1490

64 Fair Empl.Prac.Cas. (BNA) 377,

64 Empl. Prac. Dec. P 42,971, 305 U.S.App.D.C. 137

Gary L. PALMER, Appellee, v. Sharon Pratt KELLY, Mayor, et al., Appellants.

Nos. 92-7170, 93-7035.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 10, 1994.

Decided March 18, 1994.

Appeals from the United States District Court for the District of Columbia, 87cv01304.

Michael F. Wasserman, Sp. Asst. Corp. Counsel, Washington, DC, argued the cause, for appellants. With him on the brief were John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel. Edward E. Schwab entered an appearance.

Denis F. Gordon, Washington, DC, argued the cause, for appellee. With him on the brief were Frank Petramalo, Jr. and Susan J. Pannell.

Before SILBERMAN, SENTELLE, and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellee, Gary Palmer, who was a Battalion Chief and Director of the Communications Division of the District of Columbia Fire Department, claims that from 1982 through his retirement in August of 1985, high-ranking officials of the District of Columbia unlawfully discriminated against him by failing to promote him to Deputy Fire Chief. Palmer, who is white, charges that this discrimination arose from a policy instituted by then-Mayor Marion Barry to equalize the number of blacks and whites promoted to high level positions within the Fire Department--a policy implemented without adoption of a formal affirmative action plan.

In August of 1982, then-acting Fire Chief Theodore R. Coleman announced the creation of a new position of Deputy Chief of the Communications Division of the Fire Department. Coleman told Palmer that he would recommend that Palmer be promoted to this position. However, Coleman never recommended Palmer's promotion, "even though Coleman believed that Palmer was performing the Director's job in an exemplary fashion." Palmer v. Barry, 894 F.2d 449, 451 (D.C.Cir.1990) ("Palmer III "). Shortly after Palmer announced his retirement on August 30, 1985, Fire Chief Coleman appointed Carl Archer, a black Battalion Chief from another division, to be Deputy Chief of the Communications Division.

I. PRIOR PROCEEDINGS

A. The Initial Trial--Palmer I

Palmer filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on December 9, 1985 and filed suit in federal district court on May 14, 1987. After a bench trial, the district court found that the District had unlawfully discriminated against Palmer because of his race and awarded him back pay plus interest and enhanced retirement benefits for the period between 1982 and his retirement in August, 1985. Palmer v. Barry, 1988 WL 104951, 1988 U.S. Dist. LEXIS 17343, Civ. Action No. 87-1304 (D.D.C. Sept. 30, 1988) ("Palmer I "). The court found that

the stipulated facts were sufficient to make out a case that someone caused Chief Coleman to withhold Palmer's promotion, despite his qualifications therefor, in order to fill the higher position with a black; that this prima facie case was confirmed by evidence at trial; and that the District of Columbia had a race-conscious promotions policy between 1982 and 1985, pursuant to which the District sought to achieve racial balance among Deputy Chiefs.

Palmer III, 894 F.2d at 451 (citing Palmer I, slip op. at 3-5). However, part of the opinion suggested that the District may have discriminated against Palmer only between 1982 and mid-1984. The trial court found that

[d]efendants have adduced evidence of nondiscriminatory reasons for their failure to promote plaintiff after mid-1984, i.e., ... budgetary concerns, i.e., that the Fire Department was becoming top heavy with Deputy Chiefs. Moreover, in 1985, [Deputy City Administrator] Downs reversed himself and conditionally acceded to Coleman's recommendation [to promote Palmer].... Downs conditioned his approval upon a commitment from plaintiff that, if promoted, he would remain on duty for 18 to 24 months. As a result of a breakdown of communications between Downs, Chief Coleman and the plaintiff, plaintiff resigned without knowing that Downs had conditionally approved plaintiff's promotion....

Id. at 451-52 (quoting Palmer I, slip op. at 5).

B. The District's Post-Trial Motion--Palmer II

After the district court's decision in Palmer I, the District filed a post-trial motion for modification of the judgment, arguing that if the discrimination against Palmer ceased in mid-1984, then Palmer's EEOC complaint, filed on December 9, 1985, was outside the 300-day limitations period established by 42 U.S.C. Sec. 2000e-5(e) (1988). The district court denied the motion. The court explained that, although it had determined in its first order "that defendants ha[d] adduced evidence of nondiscriminatory reasons for their failure to promote [Palmer] after mid-1984, the court did not find that [Palmer's] allegations of discrimination after mid-1984 were unconnected with his allegations of discrimination before that time." Palmer v. Barry, 1988 WL 129829, 1988 U.S. Dist. LEXIS 17345, Civ. Action No. 87-1304, slip op. at 2 (D.D.C. Nov. 18, 1988) ("Palmer II ") (emphasis added). The district court then reiterated its finding from Palmer I that "someone caused the Fire Chief to keep [Palmer] out of the new position until he retired so that the position could be given to his black successor." Id. Thus, the court held that Palmer's complaint was timely filed.

C. The District's Appeal to the D.C. Circuit--Palmer III

On appeal to this Court, the District raised only the timeliness issue that it had raised in its post-trial motion. This Court, however, found the district court's factual findings so ambiguous that it was "at a loss to assess the merits of the appellants' appeal." Palmer III, 894 F.2d at 453. We explained that

[o]n the one hand, the District Court's judgment in Palmer I suggests that between 1982 and mid-1984 the District discriminated against Palmer in failing to promote him, but that after mid-1984 the District acted toward Palmer pursuant to legitimate business reasons. If so ... his complaint must be rejected as untimely. However, Palmer I and Palmer II also suggest that the District's discriminatory treatment of Palmer may have extended beyond mid-1984. See, e.g., Palmer I (District offered no evidence that "policy" of making race a "factor in Fire Department promotions" had changed); id. (Mayor's policy goal was achieved "in part ... by leaving the Communications Division without a Deputy Chief until after plaintiff retired and was replaced"); Palmer II (Palmer's allegations of discrimination after mid-1984 not found "unconnected" with his allegations of discrimination before that time).

Palmer III, 894 F.2d at 453 (internal citations omitted).

Because we could not discern the facts from the district court's holding, we remanded the case to the district court with instructions to "make specific findings as to whether the District discriminated against Palmer after mid-1984.... If there was such discrimination, then it would appear that Palmer's complaint was timely filed." Palmer III, 894 F.2d at 453.

D. Remand to the District Court--Palmer IV and Palmer V

On remand, the district court explained that

[p]rior to mid-1984, defendants did not promote plaintiff because of the Mayor's policy of equalizing black and white promotions in the Fire Department. That policy continued through 1985, but after mid-1984, defendants also did not promote plaintiff for non-discriminatory reasons.... Prior to the time when Downs authorized Palmer's promotion, the District therefore demonstrated that had there been no discrimination Palmer still would not have been promoted for non-discriminatory reasons.... During that time, Price Waterhouse precludes liability by the District for its discriminatory policies.

Palmer v. Barry, 794 F.Supp. 5, 10 (D.D.C.1991) ("Palmer IV ").

However, the court also concluded that, after the city had lifted its blanket ban on new promotions and City Administrator Downs had actually authorized Palmer's promotion, Chief Coleman failed to communicate this offer adequately to Palmer. Id. The district court found that Palmer had presented "convincing evidence that Coleman observed the Mayor's policy of equalizing black and white promotions in the Department after mid-1984 and through 1985." Id. Thus, the court "reasonably inferred that Coleman did not provide Palmer with a date and time or documentation because he was clinging to the earlier policy: when push came to shove, Coleman was reluctant to promote Palmer without promoting a black in tandem out of deference to the Mayor's earlier policy." Id. at 10-11.

The district court also reexamined the remedy it had awarded in Palmer I. Reasoning that, under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the only compensable discrimination occurred during the period when Coleman failed fully to communicate Downs's offer of promotion to Palmer--that is, the nine days between August 22 and August 30, 1985--the court reduced its prior award of back pay and adjusted retirement benefits from 1982 until August, 1985 to back pay and benefits for those nine days alone. Palmer IV, 794 F.Supp. at 10-11.

However, in a subsequent order, the district court corrected its limitation of plaintiff's award. Palmer v. Kelly, 794 F.Supp. 5 (1992) ("Palmer V "). Because the District did not challenge the propriety of the remedy in its first appeal to this Court, but instead limited its appeal to the narrow issue of timeliness, the district court held that the only issue properly before that court on remand was whether the plaintiff had proved an act of discrimination during the 300-day limitations period. Palmer V, 794 F.Supp. at 7 (citing Williamsburg Wax Museum v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987) (district court cannot...