Opinion
CIVIL ACTION No. 99-1434 SECTION: E/3.
April 15, 2002
ORDER AND REASONS
On December 4, 2001, in open court after oral argument, the district court denied defendants' motion for summary judgment on the issue of prescription of plaintiffs' claims. R.D. # 48. Defendants City of New Orleans, et al, filed a motion to certify that judgment for appeal pursuant to 28 U.S.C. § 1292(b). R.D. # 64. plaintiffs oppose the motion. The matter was submitted on the briefs on April 3, 2002.
BACKGROUND
This case is the last of four consolidated actions for damages filed by a number of Caucasians who took a written test administered by the New Orleans City Civil Service in 1991 in application for the position of Fire Recruit in the City of New OrNeans Fire Department ("NOFD"). In this reverse discrimination case brought pursuant to 42 U.S.C. § 1983, the complainants contend that the City used race as a factor in selecting fire recruits, that the City used a racial quota system in order to hire more black firefighters, and that numerous black fire recruits who scored lower on their examinations than plaintiffs were hired in preference to them solely on the basis of race.
Lalla v. city of New Orleans, et al, civ. A. 96-2640, Courtade et al v. city of New Orleans et al, civ. A. 96-2658, Thezan v. city of New Orleans et al, 98-3591, and this one, Civ. A. 99-1434.
On March 12, 1999, the court granted the Lalla plaintiff's motion for partial summary judgment on the liability issue of whether the use of race as a hiring factor violated the plaintiffs' equal protection rights under the Fourteenth Amendment to the United States Constitution. R.D. # 172 of Civ. A. 96-2640, and 1999 WL 138900 (E.D. La.). On January 5, 2000, this Court granted the Bourdais plaintiffs' motion for partial summary judgment on the issue of liability which applied its prior ruling on liability in the original Lalla case to the Bourdais plaintiffs in this action. R.D. # 262 of Civ. A. 96-2640 and 2000 WL 14687 (E.D. La.)
The facts at issue here are undisputed. All plaintiffs in the four consolidated cases took the written test for fire recruits in 1991, and all, with one exception, were ultimately hired from that Fire Recruit register by October 31, 1995. The 1991 register listed all fire recruits in descending order of their scores on the written test so each one knew his score as well as the scores of all other recruits. The City hired minority fire recruits with lower test scores than plaintiffs before plaintiffs were hired. The Lalla and Courtade plaintiffs filed suit in August 1996, alleging that the City hired black individuals with lower written test scores than plaintiffs and that as openings occurred in the fire recruit position the City continually filled the positions with minorities who scored lower on their written test than did plaintiffs. Fire superintendents McCrossen and McDaniels were deposed on May 13 and June 12, 1998, respectively. Both admitted that they used race as a factor in hiring decisions and both used a 50%/50% racial quota in hiring fire recruits from the 1991 register. On March 12, 1999, the district court ruled that the City's remedial hiring program was unconstitutional and granted Lalla's motion for summary judgment on liability. The City continued to use the race based remedial hiring program until that ruling. On May 10, 1999, the Bourdais plaintiffs filed their lawsuit.
plaintiff Thezan was not hired from the 1991 register, but retook the test in 1996 and was later hired from that register.
The City used a "sliding band system" in its hiring of fire recruits. The use of that system is not material to the matter at bar.
Defendants argue that if the facts sufficiently supportive of a civil rights claim were apparent to the Lalla and Courtade plaintiffs by August 1996, that is, that minority recruits with lower scores on the written test were being hired before plaintiffs, then those same facts also gave the Bourdais plaintiffs sufficient notice to start the prescriptive period running on their civil rights claims at the same time. Therefore, the prescriptive period for the Bourdais plaintiffs expired at the latest on October 31, 1996, one year after the last recruit was hired from the 1991 register. Plaintiffs argue that prescription on their claims began to run on May 13, 1998, because they could not have known that their civil rights had been violated until superintendents McCrossen and McDaniels admitted in their depositions that both used race and a racial quota in hiring fire recruits from the 1991 register. Plaintiffs further argue that the violation continued until March, 1999, when this Court held the practice to be unconstitutional, therefore prescription did not begin to run until then.
The sole issue for the Fifth Circuit to consider on appeal is whether plaintiffs' claims are time-barred. If they are, then defendants are entitled to judgment as a matter of law dismissing plaintiffs' suit. There is no issue of liability. The only issue remaining before the district court determining individual damages. The case is therefore quite simple, but the plaintiffs are many — fifty-six.
ARGUMENT
Section 1292(b) of Title 28 provides that the district court can certify for appeal an order not otherwise appealable. United States v. Garner, 749 F.2d 281, 286 (5th Cir. 1985)
"The purpose of § 1292(b) is to provide for an interlocutory appeal in those exceptional cases where the order in question `involves a controlling question of law as to which there is substantial ground for a difference of opinion and [where] an immediate appeal from the order may materially advance the ultimate termination of the litigation.'"Id. 28 U.S.C. § 1292(b); Clark-Dietz Associates-Engineers v. Basic Const., 702 F.2d 67, 68 (5th Cir. 1983).
Plaintiffs argue that the controlling case on interlocutory appeals isCohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949). The reliance on Cohen is misplaced. Cohen concerned interlocutory appeals pursuant to 28 U.S.C. § 1291. That Court noted that Section 1292 "allows appeals also from certain interlocutory orders, decrees and judgments, not material to this [Cohen] case except as they indicate the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties." Id. 337 U.S. at 545, 69 S.Ct. at 1225. Plaintiffs also cite Aldy v. Valmet Paper Machinery, 74 F.3d 72 (5th Cir. 1996) for the proposition that an order denying summary judgment on the ground of prescription is not immediately appealable. That case was also decided under 28 U.S.C. § 1291, and is not applicable here.
In R.J. Reynolds Tobacco Company v. Hudson, 314 F.2d 776 (5th Cir. 1963), the defendant moved for summary judgment based on prescription. The district court denied the motion but issued a certificate for an appeal under 28 U.S.C. § 1292(b). The Fifth Circuit held that the appeal was properly taken under the act because it presented a serious question of law, when prescription began to run, and if the defendant was correct, the case should be dismissed and judgment granted to the defendant as a matter of law. Id. at 777.
Both parties here cite Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554 (5th Cir. 1985) in support of their position as to when prescription began to run. The pertinent language is:
The core idea, however, is that `(e]quitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. Dumas, supra, 612 F.2d at 978. "`The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.'" Id.Id. at 1560-61.
The district court held that the event triggering the prescriptive period for the Bourdais plaintiffs was the admission in deposition on May 13, 1998, by Superintendent McCrossen that he used race and a racial quota system when hiring from the 1991 register. However, the district court finds that there is substantial ground for a difference of opinion as to whether the fact that the City hired minority recruits who scored lower on the written test before hiring Caucasians with higher scores from the 1991 register through October 1995, a fact known by all plaintiffs, should have alerted the Bourdais plaintiffs that their civil rights may have been violated. Moreover, a decision in the defendants' favor would put an end to this litigation.
The district court did not reach the issue of prescription based on a continuing violation. However, the Court notes that all Bourdais plaintiffs had been hired by October, 1995. In Havens Realty Group v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), the Court made a distinction between plaintiffs who have or have not been personally affected by an alleged continuing violation. Applying the "policy or practice" type of continuing violation theory, the Court held that only those plaintiffs who were personally affected by an illegal act of defendant within the applicable limitations period were entitled to assert a claim based on defendant's continued unlawful acts or policy.Id., 102 S.Ct. at 1125-26. Applying the same reasoning to the Bourdais plaintiffs, the city's continuing violation ceased to personally affect each plaintiff once he was hired.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that defendants' motion to certify the Court's judgment denying defendants' motion for summary judgment on the issue of prescription, rendered in open court on December 4, 2001, for immediate interlocutory appeal be and is hereby GRANTED.