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Race: Reverse Discrimination

     Monthly Law Journal Article: Promotional Rights and Procedures--Part 3: Reverse Discrimination Claims, 2010 (12) AELE Mo. L. J. 201.

     A white woman employed by the federal EPA claimed that she suffered reverse race discrimination when she was suspended without pay for seven days. Summary judgment dismissing her discriminatory suspension claim was erroneous because, under a "cat's-paw" theory, a supervisor's recommendation was intended to cause the suspension, and a jury could find that an insubordination charge was motivated by discriminatory animus given the supervisor's bias against white employee's and the employer's "weak" explanation for the action taken. Morris v. McCarthy, #14-5074, 2016 U.S. App. Lexis 10714, 129 Fair Empl. Prac. Cas. (BNA) 395 (D.C. Cir.).
     The plaintiff claimed that a village's former mayor had not appointed him chief of police because he was a white Italian-American, instead appointing a less qualified Hispanic candidate. A federal appeals court agreed with the trial court that race includes ethnicity for purposes of a Title VII claim, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination. The trial court therefore acted properly in refusing to dismiss the claim and in allowing it to go to trial. The jury awarded the plaintiff $150,000 for lost back pay, $1,000,000 for lost future pay, and $200,000 in punitive damages (against the ex-mayor personally). The appeals court, however, vacated the award, ordering a new trial because the trial judge erroneously allowed lay opinion testimony that speculated on the ex-mayor's reasons for not appointing the plaintiff. Since the case was close, the error was not harmless. Village of Freeport v. Barrella, #14-2270, 2016 U.S. App. Lexis 2629 (2nd Cir.).
    A white man employed by a city police department claimed that he suffered reverse race discrimination and conspiracy to conspire against him as a white person when an African-American woman was instead picked for the supervisory position in the department that he had applied for. A jury found for the plaintiff against three of his superiors. A federal appeals court upheld the result, finding that the materially different working conditions present in the supervisory position showed that the employee suffered an adverse employment action when he was not selected for the job, and there was also evidence to support the conclusion that two of his superiors reached an agreement to violate his rights. Bonenberger v. St. Louis Metro. Police Dept., #14-3696, 2016 U.S. App. Lexis 793 (8th Cir.).
     A white employee of the U.S. Foreign Service Office claimed that the State Department's hiring plan aiming to increase racial diversity among the Foreign Service Office's officer corps was racial discrimination in violation of Title VII. A federal appeals court rejected the claim, finding that the defendant employer engaged in a valid affirmative action plan. The employer provided evidence that the plan was targeted at remedying manifest racial imbalances in senior-level positions in the Foreign Service that were the result of past racial discrimination. The plaintiff failed to show that the justification was pretextual or that the plan was invalid. The plan ceased to exist over 20 years ago and was only in effect for two years, but the plaintiff claimed that, because of it, he entered the Foreign Service at a lower level than he would have had he been minority applicant. Shea v. Kerry, #13-5153, 2015 U.S. App. Lexis 13806 (D.C. Cir.).
     A woman who worked as a Lieutenant trainer for a state law enforcement department claimed that she was denied promotion to the position of Training Director on the basis of her white race, instead promoting a black less qualified officer of lower rank to fill the position. A federal appeals court found that the trial court erred in granting summary judgment in favor of the employer, since the plaintiff presented evidence which, if believed by a jury would have established "a fumbling, bumbling case of determined efforts" to deny the plaintiff the promotion on the basis of race. The employer failed to offer a legitimate non-discriminatory reason for its promotion decision. McMullin v. MS Dept of Public Safety, #14-60366, 2015 U.S. App. Lexis 5523 (5th Cir.).
     White firefighters claimed that a city engaged in reverse disparate treatment racial discrimination against them by allowing the departmental promotion eligibility lists to expire before their maximum legal duration. Those lists were based on a controversial exam challenged by black firefighters as discriminatory against them. The highest court in New York held that the human rights claims asserted by the plaintiff white firefighters were not subject to the notice of claim requirement as they did not constitute personal injury, wrongful death, or property damage claims. Margerum v. City of Buffalo, #7, 2015 N.Y. Lexis 250, 2015 NY Slip Op 1378, 2015 NY Slip Op 01378.
     A city held promotional exams for fire department positions of Captain and Lieutenant. Candidates were promoted in rank order based on a score that combined exam scores and additional points for seniority. After a hearing, a federal trial court concluded that the exam had adversely impacted 12 white Captain candidates and three Lieutenant candidates on the basis of race, and adversely impacted 11 Lieutenant candidates on the basis of their age. The trial court ordered the promotion of 18 candidates, and awarded each impacted Lieutenant candidate $9,000 in compensatory damages and $72,000 in front pay and each impacted Captain candidate $10,000 in compensatory damages and $80,000 in front pay. A federal appeals court upheld this result, finding that the plaintiffs met the standards for injunctive relief, as they demonstrated that substantially delaying their promotions would irreparably harm their careers. Howe v. City of Akron, #11-3752, 2013 U.S. App. Lexis 14745 (6th Cir.).
     A white male employed as a police captain claimed the failure to promote him to inspector, despite his eligibility, was impermissibly motivated by race. He argued that he had been discriminated against on the basis of race because the results of a civil service exam were replaced by the results of an updated version of the test. A federal appeals court held that he had failed to show the racial motivation for this, and that the defendants were already in the process of preparing a revised exam and eligibility list when the inspector position became available. Maraschiello v. City of Buffalo Police Dept., #12-1006, 2013 U.S. App. Lexis 4057 (2nd Cir.).
     A New Jersey jury awarded $6.8 million in damages to two senior white corrections officers who claimed that they were subjected to reverse racial discrimination and harassment by African-American supervisors. They claimed that part of the purpose had been to deny them overtime and secure more overtime for African-American officers. The harassment asserted included the filing of false disciplinary reports, and the jury found that the Department of Corrections violated a state anti-discrimination law by transferring the two white officers and failed to take action to address complaints about hostility directed against them and other white officers at a facility for non-violent offenders. The award included $3 million dollars to each officer for punitive damages, as well as compensation for lost pay and pain and suffering. Milutin and Healey v. New Jersey State Department of Corrections, state court, Mercer County, Trenton, N.J., reported in Newark Star-Ledger. Sept. 10, 2012.
     Seventh Circuit refuses to dismiss a suit by three white police lieutenants who alleged that they were passed over for promotion to captain despite ranking higher on the eligibility list than three African-American lieutenants who were promoted ahead of them. Finch v. Peterson, #09-2676, 2010 U.S. App. Lexis 18954 (7th Cir.).
     Fifth Circuit rejects a bias claim brought by a white prosecutor who was replaced by a black lawyer. The plaintiff allegedly was disrespectful, unnecessarily confrontational, and uncooperative. Jackson v. Watkins, 09-10635, 2010 U.S. App. Lexis 19075 (5th Cir.).
     Seventh Circuit lowers an award of compensatory damages for reverse race discrimination from $200,000 to $20,000. The plaintiff also received awards of back pay, front pay and attorney's fees. Marion Co. Coroner's Office v. EEOC, #09-3595, 612 F.3d 924, 010 U.S. App. Lexis 16236 (7th Cir.).
     Second Circuit rejects reverse discrimination claims in a New York fire dept. that was under a consent decree. Although African Americans made up 16.58% of the city's fire department there was evidence that African Americans made up 25.3% of the city's overall population. Vivenzio v. City of Syracuse, #08-2436, 2010 U.S. App. Lexis 13464, 109 FEP Cases (BNA) 1181 (2nd Cir.).
     Ending more than 20 years of litigation, 75 white Chicago firefighters share $6 million settlement in an action that accused the city of reverse discrimination in a 1986 lieutenants’ promotional exam. The city had “race normed” the results of the exam out of concern that it discriminated against black firefighters, but a jury found the test was fair. The city appealed to the U.S. Supreme Court, which ruled on behalf of the white firefighters. Among the firefighters is a plaintiff who lost $140,000 in back pay because he was not promoted to lieutenant. A group of 100 other white firefighters previously received tens of millions of dollars and benefits in a separate settlement in the same lawsuit. Chicago Firefighters L-2 v. City of Chicago; prior decis. at 249 F.3d 649 (7th Cir.).
     In a 5-4 holding, the Supreme Court overturns the dismissal of a suit by white and Hispanic firefighters challenging the city’s decision to reject the results because black candidates scored poorly. The written test was at a tenth grade level. 40% of the score was oral, and each assessment panel consisted of one white, one Hispanic, and one African-American judge. Absent proof that tests are not job related or that equally valid less-discriminatory tests were available, the "fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Ricci v. DeStefano, #07-1428, 2009 U.S. Lexis 4945.
     Two unsuccessful promotional candidates claimed that management’s use of a “slide banding” method, to select who to promote to lieutenant, resulted in African-American and female candidates being promoted instead of white male candidates, regardless of their ranking following a written test and assessment. The court held that the plaintiffs failed to state a disparate impact claim. Johnson v. Metro. Govt. of Nashville, #3:07-0979, 2008 U.S. Dist. Lexis 59663 (M.D. Tenn.).  
     Eighth Circuit overturns a damage award for two white firefighter applicants that were passed over because the city was following a 50% black quota, provided for in an earlier consent decree. The decree was valid until formally ended by the court. Panel distinguishes a Boston case where the hiring goals had been met and the city continued to apply racial preferences. Martinez v. City of St. Louis, #06-355, 2008 U.S. App. Lexis 18223 (8th Cir.).
     Second Circuit panel affirms a trial court's ruling that there was insufficient evidence to show that management discriminated against 17 white candidates and one Hispanic candidate when officials refused to certify the results of a firefighters' promotional exam because it had a disparate impact on black and Hispanic candidates. The full court then voted 7-6 to deny en banc review. Ricci v. DeStefano, #06-4996-cv, 2008 U.S. App. Lexis 12261; reh. en banc den., 2008 U.S. App. Lexis 12568 (2nd Cir.).
     Management articulated a legitimate, nondiscriminatory reason for its failure to promote a white firefighter because the others who were offered the positions he sought had qualifications that the employee lacked, including additional training and specialized experience. Van Pool v. C&C of San Francisco, #06-16853, 2008 U.S. App. Lexis 11412 (9th Cir.); earlier decision at 74 F.3d 1247 (Unpub. 9th Cir. 1996).
     In a civil rights action brought by a white police officer, the Sixth Circuit finds that there was no evidence to support his claims of hostile environment or retaliation. Arendale v. City of Memphis, #07-5230, 2008 U.S. App. Lexis 5843, 2008 FED App. 0116P (6th Cir.).
     Twenty-seven mostly white Georgia sheriff's deputies that were fired by newly elected black sheriff, and another seven that alleged mistreatment, to receive a $7 million settlement; most went back to work shortly thereafter. Massengale v. Hill, #1:05-cv-00083, Pacer Doc. #2 (N.D. Ga.); Clayton Co. Cmsn. Resol. 2007-106/A (6/19/2007).
     Seventh Circuit overturns the damages portion of a multi-million dollar award to 17 white police lieutenants that were passed over for captain when the city chose to promote minority candidates instead. The punitive damages awarded against each Police Commissioner was the same, even though some Commissioners sat on the Board over a significantly smaller number of promotions than others. The suit was remanded for a recalculation of damages by a new jury. Alexander v. City of Milwaukee, #06-1505, 2007 U.S. App. Lexis 1011 (7th Cir. 2007). [N/R]
     Third Circuit overturns a city's diversity policy under which firefighters were involuntarily transferred or denied requests to transfer between fire companies; any racial imbalance in the companies was not the result of past intentional discrimination by the city. Lomack v. City of Newark, #05-4126, 2006 U.S. App. Lexis 23707, 98 LRRM (BNA) 1453 (3d Cir. 2006). {N/R}
     Federal appeals court rules that while Shreveport had a compelling interest in 1980 to agree to a consent decree and to implement a race-conscious hiring process, the city failed to show that a quota was still necessary between 2000 and 2002 when white firefighter applicants were rejected because of their race. A summary judgment entered for the city by the trial court was overturned. Dean v. City of Shreveport, #04-31163, 2006 U.S. App. Lexis 2148, 97 FEP Cases (BNA) 454 (5th Cir. 2006). {N/R}
     Federal jury awards $3.5 million to six white firefighters who alleged that the Chicago Fire Dept's use of "race norming" in a 1986 examination undermined their careers. Biondo v. Chicago, #88 C 3773, 44 (2139) G.E.R.R. (BNA) 38 (N.D. Ill. 12/16/05). Prior decis. at 382 F.3d 680, 2004 U.S. App. Lexis 18245 (7th Cir. 2004).
     Federal jury awards four white Mobile Fire Dept. captains $135,000 each because they were passed over for promotion to select a lesser qualified black candidate. Stringfellow v. Mobile, #04 CV 0281, 44 (2139) G.E.R.R. (BNA) 39 (S.D. Ala., 2005). {N/R}
     Seventeen rejected white male candidates for police captain win more than $2 million; each also was awarded $102,000 in punitive damages against the former chief and members of the Fire and Police Commission. Alexander v. City of Milwaukee, #2:03-cv-00611, 43 (2105) G.E.R.R. (BNA) 407 (E.D. Wis. 2005). [2005 FP Jun]
     Justice Dept. agrees to settle reverse discrimination claim for $11.5 million, including $3.9 million in attorney fees. The class action claimed that over 500 white males were denied appointment as immigration judges during the Clinton administration. Durnford v. Ashcroft, #100-2000-07059X (EEOC 2004); interim decision at 2000 EEOPUB Lexis 2049 (2000). {N/R}
     White Delaware State Police officers win a jury verdict of $357,800 and must receive the next two available sergeant positions. The court held, as a matter of law, that the DSP maintained an illegal system of racial quotas in promotions. Bullen v. Chaffinch, #02-1315, 336 F.Supp.2d 357, 2004 U.S. Dist. Lexis 19168 and 336 F.Supp.2d 342, 2004 U.S. Dist. Lexis 18720 (D. Del. 2004). {N/R}
     Fifth Circuit affirms a $434,279 compensatory damage award to 35 white New Orleans police officers that were passed over for promotion because of their race. Management manipulated a consent decree to favor minority promotions to sergeant and lieutenant. Albright v. City New Orleans, #02-30499, 2004 U.S. App. Lexis 15123 (Unpub. 5th Cir. 2004). {N/R}
     Eleventh Circuit reaffirms that absent a valid affirmative action plan, race may not be used as a factor to hire, transfer, or promote candidates. White firefighters were not promoted to captain because the chief waited for the eligibility list to expire. Williams v. City of Jacksonville, #02-14191, 2003 U.S. App. Lexis 16678 (11th Cir. 2003). [2003 FP Nov]
     Federal appeals court rules against white police officers who challenged the promotion of minority officers under an affirmative action plan, which remedied past discrimination. Although promoting 20 black, Hispanic, and female police officers because of their race, national origin or gender was discriminatory, the need for the promotions outweighed the impact on the white male officers. Reynolds v. City of Chicago, #00-3771, 2002 U.S. App. Lexis 12274 (7th Cir. 2002). {N/R}
     Federal jury awards more than $2.2 million in damages to 10 white Chicago firefighters who were passed over for promotions. Biondo v. City of Chicago, #88-CV-3733, 2002 U.S. Dist. Lexis 3463, 2002 WL 335317 (N.D. Ill. 2002). [2002 FP Jun]
     White officers who did not receive a high enough composite score to be "bumped" from a sergeant's list lacked standing to pursue a discrimination lawsuit, because they suffered no injury. Aiken v. Hackett, #00-5227/5451, 281 F.3d 516 (6th Cir. 2002). [N/R]
     A white applicant who scored so low on a police entry exam does not have standing to challenge racial preferences, because he would not have been hired if there were no preferences in place. Donahue v. Boston, #00-10884-JLT, 2001 U.S. Dist Lexis 20964 (D.Mass. 2001). [N/R]
     Federal court rejects a suit by rejected white police applicants that an entry exam was designed to increase the scores of minority candidates. Carrabus v. Schneider, 119 F.Supp.2d 221, 2000 U.S. Dist. Lexis 15845 (E.D.N.Y.). [2001 FP 11-12]
     Massachusetts Supreme Court holds that the Boston Police Dept. improperly promoted eight minority police officers over more qualified white candidates in 1996. Management improperly relied on a consent decree that had expired, on EEOC guidelines that no longer were valid, and on a flawed constitutional theory. Mass. Assn. of Minority Law Enf. Ofcrs. v. Abban, #SJC-08396, 434 Mass. 256, 748 N.E.2d 455, 2001 Mass. Lexis 230. {N/R}
     Delaware city pays $846,000, plus pension benefits estimated at $100,000, to settle the lawsuit of a white ex-city worker who said she was targeted for termination to increase the number of minority workers. Manolakos v. Sills, #96-582, 39 (1915) G.E.R.R. (BNA) 676 (Unrptd. D. Del.). {N/R}
     Appellate court reverses a summary dismissal of the lawsuit filed by a white officer, who claims he was fired for pretextual reasons because of his race. Actions and statements by his supervisor raised a sufficient inference of discrimination. Greathouse v. Alvin Sch. Dist., 01-99-00746-CV, 17 S.W.3d 419, 2000 Tex. App. Lexis 2943. [2000 FP 141]
     Federal appeals court affirms most of a reverse discrimination judgment against Sheriff's Dept., but reduces the award from $833,660 to $530,960. Alexander v. Fulton Co., #97-8189, 207 F.3d 1303, 2000 U.S. App. Lexis 5803 (11th Cir.). [2000 FP 91]
     Eleventh Circuit upholds remedial promotions for white officers who were passed over, but significantly reduces the damages awarded. U.S. v. City of Miami, #98-4626, 195 F.3d 1292, 1999 U.S. App. Lexis 29964, 81 FEP Cases (BNA) 397 (11th Cir.). [2000 FP 13]
     Nine white male police officer candidates receive $850,000 on their reverse discrimination claims. Hopp v. Pittsburgh, #98341, 194 F.3d 434, 1999 U.S. App. Lexis 25530, 37 (1841) G.E.R.R. (BNA) 1586 (3d Cir.).
     Federal court finds that promotion of a black corrections officer was prompted by his race. Affirmative relief denied, since it is impossible to determine who should have been promoted. Wittmer v. Peters, 904 F.Supp. 845 (C.D.Ill. 1995); also see Order at 1995 U.S.Dist. Lexis 15890. [1996 FP 44]
     Suburban Atlanta county settles reverse discrimination suit filed by a white police captain that was passed over because of his race. Settlement of $150,000 avoids payment of punitive damages by the named defendants, assessed by a jury which found deliberate discrimination. Rowell v. DeKalb Co., #1:92-CV-3086, 33 (1623) G.E.R.R. (BNA) 922 (N.D.Ga. 1995). {N/R}
     Rejected white applicant fails to prove that the Philadelphia Police used a "double standard" which favored black applicants. O'Brien v. City of Philadelphia, 837 F.Supp. 692 (E.D.Pa. 1994). [1995 FP 124-5]
     Supreme Court allows a $425,000 reverse discrimination verdict to stand. Employer promoted a minority under an affirmative action plan. Claus v. Duquesne Light Co., 46 F.3d 1115 (3d Cir. 1994); 115 S.Ct. 1700 (1995). [1995 FP 107]
     Federal court reinstates a white police officer and awards him $10,000 for mental suffering. His termination from an all black college police force was pretextual and in retaliation for filing an EEO complaint. Ray v. Univ. of Ark., 64 FEP Cases (BNA) 534, 868 F.Supp. 1104 (E.D. Ark. 1994). [1994 FP 123]
     Federal jury awards $200,000 to white officer who was not promoted to sergeant because he had shot nine minority persons. Paskvan v. Cleveland Civ. Serv. Cmsn., #1:89 CV 2276, 32 (1557) G.E.R.R. (BNA) 392 (N.D. Ohio 1994), on remand at 946 F.2d 1233; award upheld by federal judge, 32 (1570) G.E.R.R. 785. [1994 FP 105]
     City's interest in achieving racially integrated police dept. at supervisory ranks was a legally insufficient reason to promote three black officers who were lower on sergeant eligibility list than white officers; there was no evidence of past discrimination to warrant an affirmative remedy. Hayes v. Law Enf. Off. Assn., 10 F.3d 207 (4th Cir. 1993). [1994 FP 59-60]
     Federal appeals court upholds a fire dept. affirmative action plan that bypassed higher scoring white male applicants. Peightal v. Metro Dade Co., 56 FEP Cases (BNA), 1218 (11th Cir. 1991).
     Federal appeals court reverses itself, allows white commanders to sue former police chief for reverse discrimination. "Wholesale" demotions of whites would be unreasonable. Auriemma v. Rice, 906 F.2d 312 (7th Cir. 1990).


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