Walsdorf v. Board of Com'rs for the East Jefferson Levee Dist., 87-3845

• Decision Date: 18 October 1988
• Docket Number: No. 87-3845,87-3845
• Citation: 857 F.2d 1047
• Parties: 48 Fair Empl.Prac.Cas. 209, 48 Empl. Prac. Dec. P 38,402 Callie WALSDORF, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS FOR THE EAST JEFFERSON LEVEE DISTRICT and John Lauricella, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1047

857 F.2d 1047

48 Fair Empl.Prac.Cas. 209,

48 Empl. Prac. Dec. P 38,402

Callie WALSDORF, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS FOR THE EAST JEFFERSON LEVEE DISTRICT and John Lauricella, Jr., Defendants-Appellees.

No. 87-3845.

United States Court of Appeals Fifth Circuit.

Oct. 18, 1988.

Dale C. Wilks, New Orleans, La., for plaintiff-appellant.

Bruce G. Reed, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GARZA, and POLITZ, Circuit Judges.

GARZA, Circuit Judge:

This is an appeal from a U.S. Magistrate's decision in an employment discrimination case. The trial court determined that: (1) the plaintiff had not been the victim of sex discrimination in her failure to obtain a promotion; (2) neither did she make out a claim under the equal protection clause of the fourteenth amendment, or 42 U.S.C. Secs. 1981 and 1983; (3) plaintiff was the victim of retaliatory actions, in violation of Title VII of the Civil Rights Act of 1964, taken by her employer in response to her filing of a sex discrimination charge with the Louisiana Civil Service Commission and the Equal Employment Opportunity Commission. Plaintiff appeals from the decision that she was not the victim of sex discrimination in the promotion process and that she did not state a separate cause of action under the equal protection clause of the fourteenth amendment and Secs. 1981 and 1983 based upon retaliation. We reverse the district court's decision regarding intentional discrimination; we affirm the finding of retaliation in violation of Title VII and we remand for further consideration of the appropriate remedy, consistent with this opinion.

Background

Plaintiff Callie Walsdorf, a white female officer in the East Jefferson Levee District Police Force, filed suit in the United States District Court for the Eastern District of Louisiana pursuant to Title 42 U.S.C. Sec. 2000e (Title VII), 42 U.S.C. Secs. 1981 and 1983 and the equal protection clause of the fourteenth amendment. She claimed that the defendants, Board of Commissioners for the East Jefferson Levee District and John Lauricella, Jr., President of the East Jefferson Levee District, discriminated against her on the basis of sex in not selecting her for promotion to the position of Assistant Superintendent II of the Levee District Police Force. She also claimed that defendants retaliated against her in connection with her filing of complaints with the State Civil Service Commission and the Equal Employment Opportunity Commission (EEOC).

On March 27, 1984 the Department of State Civil Service posted a notice at the East Jefferson Levee District Police Station announcing a vacancy for the position of Police Assistant Superintendent. Three people applied for the position: Sgt. Callie Walsdorf, Officer Perry Stewart and John T. Prados. Plaintiff Walsdorf and Officer Stewart were employed at the East Jefferson Levee District; Prados had been employed for twenty-five years outside of the East Jefferson Levee District as a civil and criminal process server with the Jefferson Parish Sheriff's Office. Mr. Prados had been defendant Lauricella's life-long friend. He was also defendant's personal choice to fill the Assistant Superintendent's position. It is undisputed that plaintiff was the most qualified applicant. It is likewise undisputed that Prados, who was eventually appointed to fill the vacancy, was unqualified at the time he applied.

As president of the East Jefferson Levee District, defendant Lauricella possessed the authority to appoint the new Assistant Superintendent. His discretion in this regard, however, was not unfettered. Each candidate completed an application process which involved, inter alia, obtaining a Special Officer's Commission from the Louisiana Department of Public Safety. Since Mr. Prados had not completed the requisite 240 hours of police classroom training, his application for a commission was initially rejected. The record indicates that Louisiana State Senator Hank Lauricella, brother of defendant John Lauricella, called upon Col. Wiley McCormack, Superintendent of the Louisiana Department of Public Safety, to request that the Col. "look into" the candidacy of John Prados, whereupon the Department changed Mr. Prados's application for a Special Officer's Commission from a rejection to an approval. Officer J.C. Ladd, of the East Jefferson Levee District, had occasion in the latter part of April, 1984 to deliver certain Civil Service papers concerning the filling of the position of Assistant Superintendent to defendant Lauricella. These documents included instructions for filling the position and apparently listed Sgt. Walsdorf as one of the eligible candidates. Upon reading the papers, defendant declared, "Well, this is the way Civil Service wants to play their games; ain't no bitch gonna get this job. My man's already picked out and that's the way it's going to be."

Sgt. Walsdorf was subsequently denied a promotion to the rank of lieutenant. The position went instead to a male sergeant, notwithstanding that Walsdorf achieved the highest score on a competitive examination of all candidates for the promotion. She did not file a discrimination charge with the EEOC in response to this particular incident. That it took place, however, does appear as evidence in the instant case.

On May 1, 1984 plaintiff filed a charge of sexual discrimination with the EEOC. The Commission issued to plaintiff a formal Notice of Right to Sue letter on May 1, 1986. Plaintiff also filed an appeal with the Louisiana State Civil Service Commission alleging sexual discrimination in her nonselection for the Assistant Superintendent job. She filed suit in the instant case on July 17, 1986. Trial before the U.S. Magistrate commenced on August 10, 1987. In addition to the claim of gender discrimination, Walsdorf alleged and proved five incidents of retaliation on the part of defendant Lauricella related to her filing of charges with the EEOC and the State Civil Service Commission.

In December, 1984, approximately seven months after plaintiff filed her charges with the EEOC, defendant Lauricella ordered that a low band radio be removed from plaintiff's official vehicle. Plaintiff claimed that she needed the radio to pick up transmissions from local agencies in connection with major local disasters. On April 19, 1985, Walsdorf was given permission to attend a three-day leadership and personnel management seminar. Later on the same day defendant Lauricella rescinded that permission. Other male officers from the Levee District were allowed to attend the training course.

Ten days later, on April 29, 1985, Lauricella transferred Sgt. Walsdorf from her duties as a road commander to a desk job in the Levee District office, under the supervision of the secretary there. Although the transfer did not result in a demotion in rank or diminution in pay, plaintiff's new position essentially entailed running errands. Six months later, Sgt. Walsdorf resumed her former duties. On another occasion, defendant Lauricella, apparently without reason, ordered the plaintiff to leave the scene of a maritime accident to which she had responded. In a final incident, on June 12, 1986, Lauricella called a meeting of all employees of the East Jefferson Levee District. When the meeting came to order, Lauricella announced in front of the entire membership that he would not begin as long as Callie Walsdorf and Officer J.C. Ladd were present because "they might be wired for Civil Service." He asked them to leave and the meeting proceeding in their absence.

As further evidence of defendant's animus toward women, plaintiff presented a memorandum written by defendant which exempted Sgt. Walsdorf and the only other female officer in the Levee District from standby duty during the Hurricane Danny emergency. He testified that, in his opinion, the women should be at home because, "somebody's got to make the beds and cook the food and, you know, do the things that's [sic] necessary....men can't do it." He stated that he thought he was "doing a good deed" in exempting the two females from standby duty.

The trial court concluded that plaintiff made out a prima facie case of gender discrimination under Title VII and that the proffered explanation of the defendant for his selection, that Prados possessed "street sense," was unworthy of credence. Nevertheless, the magistrate held that Walsdorf was not the victim of intentional sex discrimination. He concluded that Prados was selected for the position of Assistant Superintendent before the vacancy was announced and before defendant Lauricella learned of plaintiff's intention to apply for the job. The court found no evidence that Prados was preselected for the purpose of excluding a female from the position. Rather, he was selected because of the "long-time friendship" that existed between him and Lauricella.

As to Sgt. Walsdorf's claim of retaliation, the trial court concluded that the defendant's actions in reassigning the plaintiff to run errands for the Levee District Secretary, in removing the special radio from her vehicle, in preventing her from attending the law enforcement seminar, in ordering her from the scene of the maritime accident, and in excluding her from the meeting of all Levee Board members were connected with her filing complaints with the EEOC and the State Civil Service Commission. The magistrate ordered that the plaintiff recover nominal damages of $1. He also awarded Sgt. Walsdorf costs and attorney's fees, reduced by sixty percent because she had failed to prevail on her Title VII discrimination claim.

In addition, the court dismissed her Sec. 1981 and Sec. 1983 claims. With respect to the Sec. 1983 action, the court observed that there is no independent constitutional claim under that statute based on retaliatory actions in violation...