27 Tex. Tech L. Rev. 615, *

Copyright (c) 1996 The School of Law Texas Tech University
Texas Tech Law Review

1996

27 Tex. Tech L. Rev. 615

LENGTH: 23156 words

SURVEY: CIVIL RIGHTS

by James C. Harrington *


* Legal Director, Texas Civil Rights Project. Director, National Americans with Disabilities Backup Center. Adjunct Professor of Law, The University of Texas and St. Mary's University. B.A., Pontifical College Josephinum, 1968; M.A. (Philosophy), University of Detroit, 1970; J.D., University of Detroit, 1973.

SUMMARY:
  ... Compared to its decisions over the preceding two or three years, the great majority of this year's civil rights cases from the Fifth Circuit involved rather routine appellate review. ... Because Leatherman only addressed immunity for municipalities, the Court of Appeals for the Fifth Circuit, as did most federal courts of appeals, thereafter steadfastly adhered to the position that Leatherman did not affect the heightened pleading standard required in qualified immunity cases. ... The Fifth Circuit went one step further and decided that a perjuring sheriff's deputy also enjoys immunity for false testimony during a pretrial suppression hearing. ... In a situation where there was no claim of employment discrimination, but retaliation for exercise of a First Amendment right, the Fifth Circuit upheld a finding of unlawful retaliation against Ector County, its district attorney, and Sheriff O.A. "Bob" Brookshire for terminating a drug task force investigator. ... The question as to whether that deputy, as argued by the sheriff, qualified for the "personal staff exemption" from Title VII and ADEA coverage was a disputed fact issue, governed by federal law, not state statute. ...  

TEXT:
 [*615]   [*616]  I. INTRODUCTION

Compared to its decisions over the preceding two or three years, n1 the great majority of this year's civil rights cases from the Fifth Circuit involved rather routine appellate review. Few cases marked any substantial development in civil rights law, although those few did create significant changes. As might be expected the overall import of the eighty-seven cases reviewed for this summary continues to show appellate unfriendliness toward civil rights and liberty.

This survey briefly examines the more salient opinions from June 1, 1994 through May 31, 1995, discusses them topically, and hopefully offers some guidance to those lawyers, jurists, and academics alike, who strive as part of their daily lives to make the American legal system more responsive to the demands of justice.

II. OVERVIEW OF CIVIL RIGHTS DECISIONS

A. Qualified Immunity

1. Heightened Pleading and Dismissal

One of the circuit's most important decisions this year helped ease considerably the "heightened pleading" confusion in civil rights cases brought under 42 U.S.C. § 1983. Using a suit by a former city police chief against the city manager and three council members of Tomball, Texas, the court of appeals adopted a specific procedure for section 1983 actions in terms of the qualified immunity issues that typically arise. n2

Prior to the 1993 Supreme Court decision in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, n3 the circuit had imposed a "heightened pleading" standard, requiring plaintiffs to prove by specific allegations in their initial pleadings that a defendant was not entitled to immunity (sovereign immunity in the case of government municipalities, agencies, and individuals acting in their official capacities; qualified immunity for individuals in their individual capacities). n4

 [*617]  This pleading requisite had burdened civil rights plaintiffs, and sometimes effectively precluded them from challenging "lawless government action." n5 It required them to plead with a precision not generally required in other federal pleading contexts; n6 if they failed the specificity obligations as to immunity, dismissal resulted. n7

Civil rights plaintiffs thus effectively had the doors of discovery closed to them. They may have alleged enough facts to state a cause of action under the general federal pleading mandates and they may have known what happened overall in terms of the facts. Yet, without discovery, they could not assemble the particularized evidence required by the court of appeals for them to disprove immunity in the first instance -- at the pleading stage.

Further, more often than not, that evidence is in the possession of a defendant, which, without discovery, a plaintiff could not pry loose. The heightened pleading rule unfavorably disadvantaged plaintiffs and unduly protected defendants, even conceding the important purpose of the immunity doctrine.

In Leatherman the Supreme Court ruled that the Federal Rules of Civil Procedure did not permit the circuit's heightened pleading prerequisites in cases involving municipalities as defendants. n8 Because Leatherman only addressed immunity for municipalities, the Court of Appeals for the Fifth Circuit, as did most federal courts of appeals, thereafter steadfastly adhered to the position that Leatherman did not affect the heightened pleading standard required in qualified immunity cases. n9 Thus, the pleading and dismissal problems for civil rights plaintiffs by and large continued unabated; the vast majority of civil rights cases involve only individual officials because the standard for municipal liability is rather stiff. n10

 [*618]  Finally, however, the court of appeals decided en banc that while it continued to adhere to the Elliott heightened pleading rule as to individual officials, n11 it would soften Elliott's application a bit through use of Federal Rule of Civil Procedure 7 ("Rule 7"). n12 Thus, the circuit would no longer require that a plaintiff fully anticipate (and meet) the qualified immunity defense in pleading the initial complaint, at the risk of a dismissal on a Rule 12(b)(6) motion. n13

Hereafter, for purposes of Fifth Circuit practice, if a plaintiff pleads a sufficient negation of qualified immunity and the defendant then raises the qualified immunity affirmative defense with enough particularity, the district court, on the official's motion or on its own, should require the plaintiff to reply to that defense in detail before undertaking dismissal of the suit. In turn, the plaintiff's reply must tailor itself to rebutting the assertion of qualified immunity and "fairly engage its allegations." n14

The district judge "has an array of procedures" in this context. n15 For instance, the court may insist that a plaintiff suing a public official under section 1983 prepare a short and plain statement of the facts forming the basis of the complaint and negating the qualified immunity defense; this must rest on "more than conclusions alone." n16 The trial court may also, in its discretion, insist that the plaintiff file a reply addressing an answer which raises qualified immunity. n17 The judge does not have great discretion on this point in view of the principle of "vindicating the immunity doctrine," which "will ordinarily require such a reply." n18 The discretion not to compel a reply is "narrow indeed when greater detail might assist." n19

The district judge, as before, may ban general discovery at this threshold stage and narrowly limit discovery to that which is necessary for the plaintiff to meet the qualified immunity defense. n20 Moreover, the court need not allow any discovery unless it finds that the plaintiff has put forward the claim with "sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts." n21

 [*619]  The circuit's new rule attempts to install some predictability and rationality in pleading civil rights complaints and invoking the qualified immunity defense. The rule seems to be as follows. First, the plaintiff should plead as much factual specificity and particularity needed to anticipate a defense of qualified immunity. n22 Next, the trial judge or defendant may seek to require the plaintiff to file pleadings of even greater factual precision, using the Rule 7 device. n23 Third, after the plaintiff pleads with specificity, greater than conclusionary allegations, the trial court may permit limited discovery, that which is consistent with ascertaining the applicability of qualified immunity at as early a stage as possible. n24

After allowing limited discovery, the judge then may determine whether the case shall move forward by resolving summary judgment motions on qualified immunity under Federal Rule of Civil Procedure 56. n25 This procedure is fairer because it allows plaintiffs, upon a sufficient showing, to proceed with the limited discovery they need to effectively challenge a qualified immunity issue, which the parties then can fully present factually and briefly at an early summary judgment stage. n26

Thus, use of Rule 7 in this context still allows qualified immunity to shield "government officials performing discretionary functions from liability unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known," n27 while at the same time not prematurely (and unfairly) terminating a plaintiff's legitimate case.

However, pleading is but half the battle. A few recent cases illustrate the difficulties plaintiffs face in prevailing against an assertion of qualified immunity after the pleading stage.

One example involves police perjury. The Supreme Court decided that a police officer has absolute immunity from section 1983 perjury claims when testifying at a criminal trial. n28 The Fifth Circuit went one step further and decided that a perjuring sheriff's deputy also enjoys immunity  [*620]  for false testimony during a pretrial suppression hearing. n29 The perjuring officer has immunity because the adversarial nature of the hearing creates a procedural safeguard that helps prevent miscarriage of justice. n30 On the other hand, state officers do not have absolute immunity from section 1983 claims when they perjure themselves at a pretrial probable cause hearing because it is not adversarial. n31 It does not seem consistent with the norms of a fair judicial system that a court could ever countenance perjury in any fashion, at any time.

Another example of the court's generosity with grants of qualified immunity n32 is its reversal of the denial of two police officers' motion for summary judgment on immunity. n33 Without giving him advance warning to lower the volume, the officers arrested a protester at an abortion clinic for making excessively loud noise with a bullhorn at full volume. n34 The panel applied Texas disorderly conduct law n35 in a very narrow way that tended to diminish the free speech protection the state legislature had engrafted on the statute. The statute provides, as a defense to prosecution, requiring a warning or order to move, disperse, or otherwise remedy the violation prior to a speech-based arrest. n36

The appellate court assumed, because the two officers heard an antiabortion protestor with his bullhorn in a private apartment, directing his loud shouts to passersby, that he offended the statute's prohibition of "unreasonable noise . . . near a private residence." n37 Thus, even though the Texas statute admitted no such exception, the officers could ignore the pre-arrest warning required by Texas law; therefore, their conduct was not unreasonable, entitling them to good faith immunity from suit. n38

In another case, the circuit felt free to take away a jury award and reinterpret facts which a jury had construed involving a former hostage in a New Orleans criminal episode who was wounded by a police officer's use of deadly force -- shooting at the suspects. n39 The hostage's abductor was  [*621]  killed, and the hostage was shot once in the abdomen. n40 The jury returned a $ 600,000 verdict against the officer in favor of the former hostage, as actual damages, but denied a punitive award. n41 The court of appeals analyzed the deadly force complaint under Fourth Amendment doctrine, n42 as it does when the question of excessive force arises "in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen." n43 The constitutional claim is measured by the "reasonableness standard." n44

2. Duty to Protect

While pleading relaxation was helpful in civil rights litigation, in another area, four Fifth Circuit cases dealt children a set-back in finding relief when they have suffered physical and sexual abuse while in government facilities or programs. Continuing its trend over the last two years, n45 the appeals court made such litigation more difficult, if not completely problematic. This turn of legal events is unfortunate, given the extent of physical assaults and sexual abuse in schools these days. n46

In the first of these cases, the parents of a high school boy, killed by random gunfire in a Dallas high school parking lot after a school dance, brought suit against the district and principal for damages. n47 The plaintiffs claimed that a special relationship existed between the district and principal and their son, creating a duty of care that the defendants violated. n48 In the alternative, plaintiffs claimed that because defendants were aware of the danger posed to students by a night dance at this location, where random guns had been carried and fired on many occasions, their failure to protect the young man was actionable in a section 1983 action. n49

The appellate panel found neither argument persuasive. First, even if a "special relationship theory" did exist, it did not apply to "a school-sponsored dance held outside of the time during which students are required to attend school for non-voluntary activities." n50 A "special relationship,"  [*622]  if any, which the circuit did not concede, could only apply to non-voluntary activities. n51

Nor was the situation a "state-created danger" such that recovery was possible. It may have been that the school district "was negligent, perhaps even grossly so" in sponsoring the dance at the high school, given its history, and by providing only two unarmed security guards. n52 However, the conduct "of the state actors did not rise to the [required] level of deliberate indifference, which is, after all a 'lesser form of intent' rather than a 'heightened degree of negligence.'" n53 Thus, no relief on this point either.

Another shooting case at another Dallas high school fared just as poorly for the plaintiffs. In that case, a student was hit in the head by a stray bullet shot during a hallway melee instigated by a non-student who had ridden the school bus. n54 Despite the court's "sympathy for Andrew's untimely death," it found "no constitutional damage remedy available to his family." n55

There was no "state created danger" because the plaintiff did not show (1) that the environment was dangerous, (2) that the environment was dangerous to the injured individual, and (3) that the school officials placed Andrew in "a dangerous environment stripped of means to defend himself and cut off from sources of aid." n56 Again, the court countenances the negligence of Dallas ISD since it was not deliberately indifferent. n57

The court moved further from the "special relationship" theory in this case. Even though Andrew was in school "involuntarily," his killing was sufficiently random that the district could not be held accountable. n58

Former Circuit Judge Irving Goldberg strongly and eloquently dissented in the case, faulting the majority for resolving the case "prematurely" without allowing sufficient factual development in the trial court as to whether the district's actions "should be characterized as negligent, grossly negligent, callously indifferent, or any other legal label imposing liability." n59 Pointing to marked tendency on the court's part these days to  [*623]  resolve fact issues, Judge Goldberg exhorted, "Let us return to our role of reviewing the law, and allow the fact-finder to determine the facts." n60

In the third case, the court finally took away the possibility altogether of a "special relationship" theory applied between schools and students, reversing an earlier panel decision, in a section 1983 failure-to-protect case involving a repeated homosexual assault on a deaf student by a classmate at a Mississippi institutional facility for deaf children. n61

Construing the United States Supreme Court opinion in DeShaney v. Winnebago County Department of Social Services n62 as tightly as possible, the en banc court of appeals held that children do not stand in a "special relationship with the state" such that they enjoy a clearly established constitutional right to protection from known threats of harm by private actors unless those children are involuntarily confined or otherwise restrained against their will, pursuant to government order or by affirmative exercise of state power. n63

Circuit Judge Robert M. Parker's special concurrence faults the majority's interpretation of DeShaney, and points to the anomalous logic of the opinion:

Under the holding of this opinion, law abiding, tax paying citizens who, because they may be simply obeying the compulsory attendance laws or because they have no other economic choice, deliver a child to the care, custody and control of the State, do so at their own risk. At the same time those who find themselves in the care, custody and control of the State because they are criminals are wrapped in the protective cloak of the constitution. n64

In the fourth case, three former high school students lost their action against officials of Houston ISD brought for a coach's acts of sexual abuse because they did not establish that the principal did so little in responding to complaints and rumors regarding the alleged molestation by the coach that he was deliberately indifferent to the abuse. n65 Here, the principal had warned the coach that, if the abuse was true, he would recommend the coach's dismissal. n66

 [*624]  It was not a good year for students bringing section 1983 suits within the Fifth Circuit.

B. Free Speech

1. Government Employees

Absent a sufficient showing of obstruction of the government's ability to provide services, public employees, even at the policymaking level, enjoy First Amendment protection from retaliation for their public speech. n67 Thus, the chief deputy, who alleged that the Bexar County Sheriff retaliated against him for reasons of political animus, namely, membership and activity in an opposing political party, sufficiently stated a violation of a federal constitutional right. n68 The newly elected sheriff failed the Connick n69 /Pickering n70 balancing test of showing that the policymaking deputy's comments on matters of public concern were disruptive of promoting the efficiency of the sheriff department's public service. n71

Having established his right to free speech generally, the second step was to determine whether the constitutional right allegedly violated was clearly established at the time the event occurred. n72 In this context, involving a different sheriff of Bexar County, the circuit decided that, by January 1988, the law was clearly established that retaliatory transfer to a less interesting and less prestigious position could implicate the First Amendment, even if the transfer did not result in a decrease in pay. n73

Simply put, "a reasonable sheriff" could not retaliate against "a policymaking deputy for exercising his First Amendment rights unless the deputy's activities had in some way disrupted the sheriff's department." n74 As this preceding case teaches, to successfully prevail on a First Amendment retaliation claim, the plaintiff must show he or she suffered a harm that was actionable for First Amendment purposes. n75

 [*625]  In another case, a corrections officer was not as fortunate as the Bexar County deputy. Although the plaintiff, a corrections officer, arguably did suffer some minor retaliation for having strongly pressed complaints regarding employment discrimination, it was not sufficient enough for the kind of harm that is actionable under the First Amendment. n76 Further, the discipline the officer suffered appeared to be warranted by her conduct in certain instances; even then, it was still rather light in comparison to the maximum actions allowed under disciplinary guidelines. n77 This made her retaliation claim even more problematic.

Rather interestingly, the appellate court reserved unto itself the prerogative of determining when causation rises to the level that a rational jury's conclusion could differ from that of the trial bench. n78 Of course, that would not necessarily be a positive step for an employment discrimination claimant.

Sometimes, even though an employee may present an employment discrimination claim along with a First Amendment retaliation cause of action, the court may find contrary to the discrimination claim, but affirmative on the retaliation question. n79

In a situation where there was no claim of employment discrimination, but retaliation for exercise of a First Amendment right, the Fifth Circuit upheld a finding of unlawful retaliation against Ector County, its district attorney, and Sheriff O.A. "Bob" Brookshire for terminating a drug task force investigator. n80 The investigator was terminated because he had complained to the county regarding harassment his wife allegedly had to endure as an employee of the sheriff's department. n81 The court ruled that the matter was of public concern and that indeed there is "perhaps no subset of 'matters of public concern' more important than bringing official misconduct to light." n82

In determining whether information is of public concern, the test is whether the information is relevant to the public's evaluation of the  [*626]  governmental agency's performance. n83 The proper inquiry is not into the motivation as to what prompts the public employee to bring the matter to the attention of the public, but the form, content, and context of a statement. n84

Not all matters of public concern are ripe for comment by public employees in all circumstances; the court must evaluate the state's interest in promoting efficiency of the public service it provides through its employees. n85 There are three factors to consider: "(1) whether the speech was likely to generate controversy and disruption; (2) whether the speech impeded the general operation of the department; and (3) whether the speech affected the working relationships necessary for the proper functioning of [the governmental entity for which the employee works]." n86

Here, the investigator won a jury verdict for $ 90,800 in compensatory damages, and $ 200,000 in punitive damages; and the trial judge ordered him reinstated within ten days. n87 The investigator had also brought a claim under the Texas Whistle Blower Act. n88 On this point, he was not as fortunate; the appeals panel determined that the jury instruction on the whistle blower issue was faulty and did not properly inform the jury that the defendants could have rebutted the presumption of retaliation by offering evidence and proving they would have fired the investigator for a non-discriminatory reason. n89 That issue was reversed and remanded for trial, although it is unclear what the practical effect would be, inasmuch as the investigator prevailed on the First Amendment claim. n90

Another example of a public employee prevailing involved a deputy's case against the sheriff of Harris County and the civil service commission. n91 In this case, the deputy alleged that Sheriff Johnny Klevenhagen had retaliated against him for First Amendment protected activity. n92 Specifically, the deputy complained about racially derogatory language and epitaphs used by a sergeant to refer to African-American members of the sheriff's department, as well as the sergeant's manner in dealing with the deputy in front of patrons at a predominantly African-American night club. n93

 [*627]  The jury held in favor of the deputy, finding that Klevenhagen discriminated against him on the basis of race, retaliated against him on the basis of political activities, that race played a part in the civil service commission decision to augment the deputy's sanction, and that Klevenhagen had a policy of discriminating against African-Americans. n94 The jury awarded $ 200,655. n95

The court of appeals sustained the jury verdict and affirmed the trial judgment. n96 The district judge had tried the Title VII claim parallel to the jury trial on the First Amendment claim and had supplemented the holdings in both to adjust that part of the jury verdict, finding that the policy was not a violation of the deputy's constitutional rights. n97

A sheriff, on the other hand, indeed is entitled to a reasonable level of loyalty and efficiency from his employees, regardless of their political beliefs; it is perfectly legal to discharge an employee who does not fit this bill. n98 Although complex, the law on filling positions based on loyalty and trust has been clearly established since 1981, at least. n99 Upper echelon, policymaking employees are within the exceptional class of public servants of whom political allegiance may be demanded; they may suffer legitimate political retaliation for having supported the wrong candidate. n100

Nonetheless, Sheriff Brookshire of Ector County was unsuccessful on appeal in sustaining, without trial, the dismissal of one of his deputies, who claimed age discrimination and constitutional violations. n101 The question as to whether that deputy, as argued by the sheriff, qualified for the "personal staff exemption" from Title VII and ADEA coverage was a disputed fact issue, governed by federal law, not state statute. n102

The court further noted that Congress intended the personal staff exemption to be narrowly interpreted and applied only to individuals "in highly intimate and sensitive positions of responsibility on the staff of the  [*628]  elected official," and re-adopted the six-factor test for the exemption that it devised ten years ago in a Title VII case arising from Bexar County. n103

Nor does one need to be a salaried state employee to come under the Connick n104 /Pickering n105 tests for measuring retaliation on a First Amendment claim against a public entity. n106 In this particular case, the court held that, although he was not on the public payroll, the fact that a blind vendor held a state concession license for the Louisiana State Capital created sufficient enough nexus to invoke Connick/Pickering considerations. n107 Although certainly personal interests were behind the vendor complaining vehemently to the public about his treatment and subsequent retaliation, he raised an issue of public concern and was entitled to a jury to measure the constitutionality of the retaliation. n108

Likewise, a school district's cancellation of an art program at a predominantly African-American junior high school was a matter of public concern such that a teacher, who showed evidence of a superintendent's alleged unconstitutional motivation, survived a summary judgment motion based on qualified immunity. n109 So long as the superintendent's motivation for transferring the teacher was put in issue, a material issue of fact precluded summary judgment on the question of violating the teacher's First Amendment rights. n110

2. Retaliation

It might seem somewhat hard to imagine in this day and age, but the court of appeals decided that, at least in 1988, the right to be free from police retaliation for filing and winning a lawsuit was not clearly established as a First Amendment constitutional right. n111

 [*629]  In this situation, a night club operator previously had filed and won a civil rights case against local sheriff officials and an FBI agent. n112 Thereafter, he brought a subsequent lawsuit alleging that beginning in the summer of 1988, after his successful trial, he became the target of a campaign by law enforcement officials from different agencies to harass and implicate him in criminal activity. n113 Further, they allegedly engaged in various kinds of physical assaults upon him, sufficient that the court of appeals rejected, as did the trial judge, their claim of qualified immunity. n114

Nevertheless, the court held that while the club operator might have an action for excessive physical force, he did not have one for retaliation of his right to file a lawsuit. n115 The facts are fairly egregious and clear that retaliation was no doubt the motivating activity behind the brutal and illegal treatment received by the club operator, but lawful police conduct itself (such as conducting an official investigation) could not constitute retaliation. n116

C. Employment

1. Sexual Harassment and Discrimination

The intersection of First Amendment rights and a claim of sexual harassment played out in a West Texas case in which a female police officer filed suit against the El Paso Municipal Police Officers Association for derogatory comments made by one of its anonymous newsletter columnists with regard to the employment of plaintiff and other women in the El Paso Police Department. n117 Four remarks were printed over a two and one half year period. n118

The officer won a jury verdict of $ 10,000 in compensatory damages and $ 50,000 in punitive damages. n119 However, the court of appeals reversed, holding that the association was not an employer. n120 Nor did its publication have the effect of creating or using sexually offensive  [*630]  epitaphs or comments in the operation of the police department that were "pervasive enough to create an objectively hostile or abusive work environment." n121

Indeed, the police chief, although having no direct authority over the Association, issued two internal memoranda to all El Paso police officers condemning the offensive column. n122 Not only did the comments not reflect the official views of the Association, its president wrote a letter to the paper defending female officers. n123

For purposes of analyzing sexual harassment in the hostile environment context, a court utilizes a totality of circumstances test articulated by the United States Supreme Court in Harris v. Forklift Systems, Inc. n124 First, the person must be subjected to overtly discriminatory treatment. n125 Next, some sort of physical or sexual advances generally are present. n126 Third, the complainant generally is preyed upon by a superior whose actions could be interpreted as abuse of power against the subordinate employee. n127 Finally, apart from the claimed impact of the harassment, there generally should be an atmosphere of sexual inequality or sexually demeaning treatment. n128 Inasmuch as none of these four factors applied to the El Paso officer's situation, the court of appeals ruled that she failed to prove her case. n129

Further, because the article was "pure expression" and there were no quid pro quo overtures, sexual propositions, discriminatory employment practices, or "fighting words," the court would defer to the First Amendment. n130 The opinion noted, more than in passing and perhaps presaging a future opinion, that the Supreme Court's "offhand pronouncements" on the intersection between First Amendment rights and Title VII offenses, flowing from verbal insults, pictorial or literary matters, which raise problems of content based, viewpoint discriminatory restrictions on speech, are "unilluminating." n131

On a different issue, the court this year again made clear that harassment by a male supervisor against a male subordinate employee does not state a claim under Title VII, even if the harassment has sexual  [*631]  overtones. n132 Title VII addresses gender discrimination, not sexual discrimination. n133 Nor does an employee terminated because she became aware of an alleged sexual relationship between her supervisor and another employee state a claim for a sexual harassment violation of Title VII since the motivation for termination was not gender. n134

On an evidentiary point, the court held that, in proving a sex discrimination claim, while it is true that generalized testimony by an employee's subjective belief that the discharge was based on discrimination is not sufficient to reach a jury, specific factual testimony by the employee is sufficient n135 (such as relaying specific conversations indicating discrimination). n136

Another example of how the appeals court overturned a jury verdict or trial level judgment beneficial to civil rights plaintiffs was in a sex discrimination case that the Equal Employment Opportunity Commission (EEOC) brought against Bailey Ford in Texas. The court held per curiam that the evidence in the record would support the district judge's finding that Bailey Ford did not discriminate on the basis of sex in refusing to hire a prospective employee as a truck sales person. n137 There was no discussion of the evidence in the opinion.

However, District Judge William Wayne Justice, sitting by designation, outlined a series of facts which makes one wonder why they were not discussed and distinguished at length by the majority opinion, which confined its per curiam opinion to two brief paragraphs. Indeed, the facts as outlined by Judge Justice suggest that the case should be remanded for the trial court to make clear the evidentiary bases for its factual findings and to point out which evidence it adopted and which it rejected in making such findings. n138 In fact, the circuit often does just that, especially in voting rights cases when the fact finding by the trial bench is not sufficient enough to make clear its evidentiary basis. n139

 [*632]  2. Age Discrimination in Employment Act (ADEA)

In terms of proving age discrimination, evidence that a supervisor made negative remarks about the employee's age is generally relevant. n140 On the other hand, introducing a letter of violation from the EEOC is usually not proper evidence and can be excluded under Federal Rule of Evidence 403 because of the danger of unfair prejudice. n141 An EEOC letter of violation raises the specter of unfair prejudice to the employer. n142

In some instances, the trial bench may allow a letter of violation, but it must first weigh the letter's probity against the likelihood of prejudice. n143 The district judge retains discretion to exclude or admit the letter of violation. n144 On the other hand, an EEOC letter of reasonable cause is often admissible because of the tentative nature of its conclusion, while the letter of violation states a categorical legal conclusion that a violation has occurred. n145

In an age discrimination case involving legitimate age-related qualifications, the Fifth Circuit declined to fault American Airlines' "years to captain" policy by which the airline would only allow applicants for the captain's position who could achieve that position by age sixty, even though application of this policy had the effect of precluding persons over forty from the position. n146 The appeals panel found, based in part on the collateral estoppel principle and a finding in an earlier case, this was a bona fide occupational qualification. n147

In reality, sometimes because of American's need for pilots, the cut off age actually rose above forty. n148 In addition, the judges swiped at the EEOC for its statistical analysis used to show intent -- that applicants over age forty were rejected in disproportionate numbers to those under forty -- because the analysis compared hired candidates to all applicants in each age group and did not properly account for their qualifications. n149

On another concern, particularly with remedy, the court of appeals in April 1995 had the opportunity to apply the Supreme Court's ruling in  [*633]  McKennon v. Nashville Banner Publishing Co., n150 that evidence of employee wrongdoing acquired by the employer after termination does not provide immunity from liability, although it may affect the remedy. The appeals panel in this case, involving the Director of National Account Sales for Kinetic Concepts, Inc. (KCI), declined to apply the rule in such a way as to benefit KCI's efforts to justify its termination. n151

KCI went back after the employee's termination and found that he listed a college degree on his employment application, but in reality, he had completed less than a year of college. n152 KCI maintained that had it known that fact, it would not have hired him, despite his years of obviously better-than-satisfactory performance. n153

The Fifth Circuit disagreed, explaining, "the pertinent inquiry, except in refusal-to-hire cases, is whether the employee would have been fired upon discovery of the wrongdoing, not whether he would have been hired in the first instance." n154 KCI used the evidence to argue it would not have hired him, rather than claiming it would have fired him upon learning of the false application statement, which would have affected his remedy upon the successful verdict at the trial level. n155

The court explored further the appropriateness of front pay vis-a-vis liquidated damages, n156 an issue of increasing difficulty and controversy in ADEA cases. The trial judge found that the ADEA violation was willful because KCI knew age discrimination was unlawful and did not even offer "colorable grounds" to believe the ADEA was inapplicable. n157 The circuit declined to develop a "bright line" rule with regard to deciding when liquidated damages or front pay was appropriate, allowing that issue to remain within the discretion of the district court. n158 The appeals bench considered various items such as back pay, lost wages, medical, and other compensable expenses in evaluating whether the award was excessive. n159

Another example of the problem of front pay and reinstatement issues emerged with regard to a high school principal who had worked with the IUKA Special Municipalities Separate School District in Mississippi prior to its consolidation with the Tishomingo County School District. n160

 [*634]  In that case, the appeals court held that the former principal certainly had suffered retaliation for filing an ADEA claim against the Tishomingo district. n161 The school board clearly excluded him from consideration of any position after the merger because he filed an ADEA complaint. n162 He proved his retaliation claim through circumstantial evidence by showing: (1) he engaged in activity protected by the ADEA; (2) an adverse employment action occurred against him; and (3) a causal link existed between his participation in the protected activity and the adverse employment decision. n163

The evidence was actually rather straightforward. The former principal was passed over for a new principal's position in favor of a person from out of state who had twelve years experience, as opposed to his nineteen years. n164 The district also hired a man from outside the district with only one and one half years of experience as assistant principal. n165 The court of appeals affirmed that the school district's violation of the ADEA was intentional or showed recklessness that would support a willfulness finding. n166

The former principal, even though he won a jury verdict on the retaliation issue, did not find a job in the end; the district judge declined to appoint him to a position. n167 The appellate bench refused to find an abuse of trial court discretion because the former principal had not been denied a specific position and, further, reinstatement would create discord and cause antagonism. n168 The judges also considered the fact that he had found other employment, even though it was somewhat more of a financial burden on him because it necessitated maintaining two residences. n169 Nevertheless, the panel held he was properly compensated; the court declined to apply its holding in a First Amendment case which held that antagonism generally does not provide a bar to reinstatement. n170

The preceding case illustrates some of the difficulty with reading current Fifth Circuit cases. It is not clear from the opinion how much the former principal won from the jury and whether he really ought to be content with the sum of money, absent reinstatement, especially with the  [*635]  anomalous twist that by applying for positions generally, he applied for no specific position. This lack of "complete disclosure" by the circuit makes discussion of some cases difficult and problematic.

Also, rather remarkable is the court's continuing willingness to refashion or recast facts produced at trial and relied upon by a jury to take away the jury award. n171 In an ADEA case originating in Louisiana against the state's office of community services, the circuit spent considerable time analyzing the evidence offered at trial (which resulted in a jury verdict for the EEOC) and found that two promotion denials were age related and that the second denial was willful, but not retaliatory. n172 The appellate judges essentially found that the qualifications of the person for whom the suit was brought were "not so superior to those of the selectees to allow an inference of pretext [for age discrimination]." n173

The judges essentially substituted their findings for the jury's by reviewing the record and deciding it revealed that the complainant did not have substantially more supervisory and compliance experience than the two persons selected over him for promotions. Ironically, the court said it would "decline to substitute our judgment for the employer in evaluating what types of experience are most valuable for an employee in the new position in the absence of proof that the standards were not consistently applied or were so irrational or idiosyncratic as to suggest a cover-up." n174

Presumably, that is actually the role of the jury, to evaluate the weight of the evidence and make findings with regard to the employee; it did so and found discrimination. Further, the court credited the agency's "facially denying the explanation for each of the EEOC's arguments," finding that the plaintiff had "offered no evidence to rebut the employer's facially benign explanations," and thus, "no inference of discrimination can be drawn." n175

It is interesting, perhaps even somewhat alarming, that the Fifth Circuit would engage in such a fact finding role, n176 particularly when it came to evaluating the weight of evidence submitted and in the face of a jury verdict that went opposite the appellate court. Perhaps, because ADEA jury verdicts tend to be more frequent than verdicts for other forms of  [*636]  discrimination, the court in actuality is attempting to put a brake on ADEA verdicts.

3. Title VII -- Class Action Judgments

Another example of how the court applied its discretion against civil rights plaintiffs is a class action from Mississippi arguing that Douglas & Lomason Company ("D & L") intentionally discriminated against African-Americans in its hiring, promotion, and termination practices. n177 The court ruled that the disparate impact model of discrimination was not an appropriate vehicle from which to launch a wide ranging attack on the cumulative effects of the company's employment practices. n178

Thus, in spite of rather potent statistics showing discriminatory hiring, promotions, and retaliatory discharge practices, which seemed to predominate strikingly during the tenure of a particular manager, the court determined that the plaintiff needed to identify a specific policy that allegedly caused a race based imbalance in the number of persons who received promotions in order to justify use of the disparate impact model. n179 Otherwise, the judges argued, the disparate treatment model applied. n180

For some reason, the appellate panel seemed to back away from earlier consistent holdings that plaintiffs may establish a prima facie case of disparate impact by use of statistics to show a gross disparity in the treatment of workers on account of race. n181 However, statistics are not irrefutable and, like any other variety of evidence, may be rebutted. Their usefulness of course "depends on all of the surrounding facts and circumstances." n182

On the other hand, if the facts of this case are as painted by the dissent, the majority opinion presents an incomplete rendition of the facts, to say the least. n183 The dissent, presenting an admirable overview of the different tests and applicable law for discrimination cases, argues that disparate impact analysis is appropriate, given the deliberate hiring screening devices utilized by the company. n184

In fact, the statistics are rather dramatic with regard to factory jobs at D&L. Before the offending plant manager held his position at the  [*637]  company's Cleveland, Mississippi plant, 64.6% of those hired for general factory jobs were African-American. n185 During his tenure, that number dropped to 46.5%. n186 After he left, African-American hires rose back up to 61.1%. n187 Likewise, with regard to promotions, prior to the manager's arrival at D&L, 63.8% of promotions went to African-Americans. n188 That number plummeted to 22.7% during his tenure as plant manager, and returned to 63.7% after suit was filed. n189

The dissent contended that D&L's entire work force, which was approximately 70% African-American, was the pool against which promotions should be compared. n190 The dissenting judge zeroed in on the rather surprising practices of companies that have the effect of limiting employment of African-Americans and detailed considerably the trial testimony, faulting the district judge for "improperly supplying reasons for ignoring Plaintiffs' statistical analysis which no party espoused at any time throughout the trial or during depositions." n191 When asked why the number of African-American promotions had declined so precipitously during the particular plant manager's tenure, neither he nor any supervisor questioned could offer an explanation. n192 Yet, that kind of weak defense evidence did not impress the appellate majority.

4. Title VII -- Consent Decrees

Issues of reverse discrimination, by virtue of affirmative action plans and court orders, arise more and more these days in the Fifth Circuit, as in the nation generally. n193 Two cases of note came before the court during the year in review; n194 the final disposition of one of them, involving the City of Houston, likely will have enormous effect ultimately on whether the states in the circuit (Texas, Louisiana, and Mississippi) will continue to progress down the road of social and economic integration. n195

In evaluating a consent decree entered into by the City of Houston and a class of African-American and Hispanic police officers, approved by the trial court for the Southern District of Texas, the court of appeals considered  [*638]  two important issues: first, the appropriateness of intervention petitions at both the trial and appellate levels; and, second, whether the consent decree passed Title VII and Fourteenth Amendment muster. n196

The intervenors were Anglo Houston police officers, fire fighters, and airport police who contended that the consent decree discriminated against non-minority persons on the basis of race and therefore fell afoul of Title VII, and particularly the Fourteenth Amendment. n197 The appellate court ruled, by a 2-1 vote, that the denial of intervention at trial level was appropriate because it was not timely filed and, further, none of the officers were adversely affected by the denial inasmuch as they could all, and in fact some did, testify at the fairness hearing prior to entry of the consent decree. n198

However, the denial of intervention for purposes of appeal was another question, in that the City of Houston chose not to appeal (nor obviously did the plaintiffs) and thus no party was there to represent the interest of the affected non-minority officers. n199 Accordingly, the officers were entitled to intervention as of right, and the district judge erred in not allowing them to do so. n200 There was no error, however, in the denial of intervention because the appellate court upheld the decree against both Title VII and equal protection challenges. n201

Further, the appellate panel upheld the consent order because it sought to remedy past discriminatory practices and alleviate the adverse impact of promotional exams in the future. n202 The remedial promotions were directed only to those positions where discrimination had occurred. n203 Moreover, those future promotions were limited only to those most likely to have suffered discrimination and in direct proportion to the amount of discrimination they suffered. n204 Further, the decree was confined to specific forms of discrimination and not to minority promotional enhancement overall. n205 Thus, Asian-Americans and women were excluded from the plaintiff class because they could not show discrimination against them in the promotional exams. n206

In addition, according to the majority of the panel, the consent decree met Supreme Court requirements for narrow tailoring, flexibility, and  [*639]  duration. n207 The decree enacted remedial promotions for a five year period, eliminated questions biased against any race over a ten year period, and extended promotions from one to two years. n208 The decree did not have perpetual endurance, but was rather of a temporary nature. n209 Further, the numerical goals established were exactly matched to the number of promotions lost by African-American and Hispanic police officers. n210 Remedial promotions were made without regard to the percentage of African-Americans and Hispanics in the sergeant and lieutenant ranks. n211 Thus, there were no numerical quotas.

In another twist to the affirmative action problematic, the Fifth Circuit rejected the claim of a white employee who alleged that a Louisiana state agency, by virtue of an earlier federal court order, had passed over him and instead promoted an African-American employee into a supervisory position as part of the settlement of his individual civil service complaint, in which he had claimed race discrimination in not promoting him to a supervisory position. n212 The court held that the agency's good faith settlement of that claim of past discrimination constituted a legitimate, non-discriminatory reason for its employment decision. n213

Nor does an employer's good faith attempt to remedy past discrimination by entering into a settlement agreement constitute an independent racially driven discriminatory act against an employee not party to the agreement but who nonetheless is adversely affected by it. n214 Any other decision, wrote the Fifth Circuit, would discourage settlement and hamper employers' efforts to redress past discrimination. n215 As long as the settlement was made in good faith, and not a pretext to hide discriminatory treatment, the employer would prevail. n216

 [*640]  5. Title VII -- Procedural

The court ruled on two issues of procedural importance with regard to Title VII claims. The first involved how trial judges should handle pendent state claims, especially when they dismiss federal claims and nothing remains except state law claims. n217

The court of appeals tends to look with favor upon dismissing pending state law claims without prejudice, where federal claims are properly dismissed prior to trial, as being within the discretion of the district bench. n218 The downside to this, of course, is that it may cause statute of limitations problems for the plaintiff. Likewise, the rule seems unfair because a plaintiff really has no ability to file a state claim anywhere but with the federal case since procedural steps by the defendant inevitably will bring them together.

Thus, a Title VII complainant actually may have a state law claim, which by virtue of statute or interpretative decision of the state courts, is actually stronger than the federal claim. However, because of the procedural situation, the complainant will end up in a position where the federal judge will dismiss the Title VII case on the merits and leave the plaintiff hanging out on a limb with regard to the state claim. A federal judge need not exercise discretion to dismiss the state cause of action, and it would seem that the ends of justice are best served by allowing the discrimination plaintiff a day in court, rather than dismissing the case after the expense and time of discovery. Not only is the plaintiff forced to begin anew in state court, if indeed that is possible, but the plaintiff must also undertake more financial risks, something difficult for plaintiffs who often find themselves unemployed because of the employer's action. This problem is a further example of how courts exercise discretion adverse to the interest of civil rights.

Another situation that sometimes plagues Title VII plaintiffs is ascertaining which statute of limitations applies vis-a-vis filing a complaint with the Equal Employment Opportunity Commission and/or with a Title VII state deferral agency, and understanding the interplay between the two. n219 The Fifth Circuit tried to illuminate this situation, and did so in a way that may benefit Title VII plaintiffs.

 [*641]  In a case arising from Dallas, the court analyzed the Title VII work sharing agreement, allowed by Congress, between the Texas Commission on Human Rights (TCHR) and the EEOC. n220 The EEOC accepts a charge of discrimination as the TCHR's agent when the face of the EEOC charge makes it clear that the person is filing with both agencies, although using the EEOC agency. n221 Doing so calls into play the longer 300-day limitations period for a charge of discrimination, rather than the 180-day period required for an EEOC charge by itself. n222

Thus, filing with the EEOC and indicating it is also a TCHR complaint triggers the 300-day limitations period. n223 Even though the TCHR has waived exclusive jurisdiction over a claim filed beyond the applicable 180-day period, if the charge is filed only with the EEOC, but before the 300 days run following the alleged discriminatory event, the waiver still transforms the EEOC's receipt of the charge into a filing of that charge for TCHR purposes and thus allows the EEOC to initiate proceedings on that charge immediately. n224

Consequently, even though the TCHR will not review the charge after the 180-day period, although it has authority to do so, the EEOC is still the TCHR's agent for receipt. n225 Thus, the 300-day limitations period is initiated, and the EEOC may act within it. n226 This also allows the extension of the period of time within which to request a right-to-sue letter for EEOC purposes and thereafter proceed. n227

6. Title VII -- Retaliation and Damages

In Hadley v. VAM P T S, an African-American brought suit against a former employer, and succeeded on both a Title VII claim of retaliatory discharge and a Texas tort claim of intentional infliction of emotional distress. n228 However, the court of appeals reversed the award of punitive damages on the tort (because there was no jury assessment of actual damages) and remanded for reevaluation of whether the judge's initial denial of front pay was appropriate in view of the reversal of punitive  [*642]  damages (usually an award of punitive damages is needed to justify denial of front pay). n229 The court also held that there was no per se rule that requires prejudgment interest to be included in a back pay award. n230

7. Public Employment

Apart from the cases already discussed about First Amendment activity, not many notable public employment cases came before the court on purely constitutional issues. Probably the decision of most interest involves the question of discrimination against persons with criminal records, in which the court, applying the lowest federal equal protection test, had no problem justifying. n231

In Hilliard v. Ferguson, the court held that a rational basis existed for a school district's policy of making case-by-case determinations as to the circumstances of teaching applicants' felony convictions in order to determine employment eligibility, especially considering the need for the district to assure that school children are in a safe and secure environment. n232

D. School Desegregation

In spite of the hostility toward affirmative action clearly evidenced more and more by conservative thinkers and judges, n233 who place greater reliance on education as the tool for minority communities to advance out of their history of segregation, n234 the courts are not receptive to assuring the goal of a good education, even as they dismantle economic affirmative action programs. n235 One case example involves the Enterprise, Quitman, and Lauderdale County school districts in southern Mississippi in which the court examined Mississippi's 1953 official school segregation statute that created these districts. n236 Eventually, federal court orders provided for integration. n237 This case, which came in front of a magistrate by consent,  [*643]  ruled that inter-district transfers were necessary to assure continued desegregation. n238

The court of appeals reversed on this point, arguing there was no finding of inter-district segregation, even though the very origin of the districts and their transfer plans was to perpetrate and perpetuate segregation. n239 However, federal court orders had prevented implementation of the 1953 statute. n240 Thus, there was an insufficient basis for the court to require inter-district busing. n241 Even though the court relied heavily upon the Milliken v. Bradley standard, n242 it failed to explain Milliken's applicability to this situation in which the Mississippi districts had been formed originally for purposes of segregation.

This ruling is reflective of others over the last few years by the court of appeals in which it has upheld trial court rulings that schools are now "unitary" or integrated by virtue of a court order. Unfortunately, the reasoning seems to be circular. A school district is desegregated by judicial decree, and thus becomes integrated. A few years later, the judge looks back and determines that the district is currently integrated, although it is only so by virtue of the court order. Upon abolishing the order, the schools return to de facto segregated status, caused by housing patterns more often than not. The courts then no longer look at the school as segregated because the intent to segregate is absent. The result is as deadly; schools actually return to a de facto segregated status. The lack of integrated schooling necessarily means a differential in education by race and ethnic status. The courts' reluctance to look at the issue in the context of reality causes the inadequate education that plagues racial and ethnic minorities.

E. Police Misconduct

The Fifth Circuit applied the rule of Heck v. Humphrey n243 -- a criminal conviction precludes any subsequent section 1983 action claiming violation of the constitutional right to be free from malicious prosecution and false arrest -- and expanded it. n244

 [*644]  Two miscellaneous points: on the first, and attesting to the ability of modern day computers to string cite for progeny, the Fifth Circuit spent a good deal of paper on a relatively simple case from San Antonio, reaffirming that the negligent misidentification of a suspect in and of itself did not support a malicious prosecution claim. n245 Nor did a single incident of mistaken identification establish municipal custom for purposes of section 1983 liability. n246 The court also spent considerable time arguing that the Texas Tort Claims Act did not apply, finally acknowledging the dispositive Texas Supreme Court cases that construe the statute against appellant. n247 Additionally, the initiation of a criminal prosecution after the filing of a civil rights suit does not in and of itself create a jury question on a claim of retaliation in a civil rights case that the prosecution was maliciously commenced. n248

F. Jails

1. Conditions of Confinement

A decision involving a pretrial detainee's claim that he, a white racist, was confined in cells with African-American inmates for punitive purposes set off an acrimonious debate within a circuit panel about the proper standard for measuring pretrial detainees' due process rights. n249 In that case, against Mississippi officials, the appellate court found that a pretrial detainee's due process rights are violated if a prison official's conduct is not reasonably related to legitimate, non-punitive objectives (such as security and order). n250

The opinion, authored by Judge Ginger Berrigan of the Eastern District of Louisiana, sitting by designation, reviewed a number of cases applying Fourteenth Amendment due process standards for pretrial detainees, and Eighth Amendment standards for prisoners, and tried to make sense out of  [*645]  the precedents. n251 Her opinion came under sustained, but ofttimes politely deferential, attack by Circuit Judge Jerry E. Smith. n252

Judge Smith accused the majority of backing away from the "deliberate indifference" standard, which in his opinion is typically used by the Fifth Circuit in condition-of-confinement cases. n253 He argued that the court repeatedly had rejected a reasonableness standard. n254 The deliberate indifference test should be applied, in his view, in failure-to-protect cases. n255 Judge Smith also took Judge Berrigan to task for overruling precedent and not properly deferring to earlier cases. n256

What apparently provoked Judge Smith's pique was the majority's effort to halt the circuit's clear trend toward diminished protection for prisoners, whether convicted inmates or pretrial detainees. n257 Certainly the standard announced by the majority is easier to address in the context of jail litigation than the deliberate indifference standard. While the reasonable relationship test might conceivably lead to greater judicial intervention, it is still flexible enough to accord the proper amount of deference to jail officials.

On the other hand, the circuit has applied the deliberate indifference standard so rigorously that it is virtually impossible for jail litigation to achieve its legitimate purpose and address deplorable confinement conditions and official misconduct. n258 Perhaps this case will provide the catalyst for a more realistic evaluation of the federal courts' role in assuring constitutional protection in jails and prisons.

In the latest case in the ongoing saga over the Harris County jail system, n259 the appellate courts yet again affirmed lower court rulings designed to improve the Harris County jails, this time being the trial judge's sua sponte modification of certain relatively minor aspects of the underlying consent decree and court order. n260 However, the court of appeals did decide that, when modifying the population caps of the jail, as  [*646]  circumstances warrant, the district judge must make a finding of substantially changed circumstances, given the effect the modification would have overall. n261 Although the trial judge has great discretion, it is not unfettered. n262 Alberti III, as the court of appeals "fondly" refers to it, also upheld that part of the court order finding the State of Texas responsible for paying sanctions for jail overcrowding and taxing the State for ninety percent of the cost of monitors. n263

Similarly, the appellate court accorded great deference to the trial court injunction to control jail conditions in Angelina County, Texas. n264 Particularly faulted by the district judge was that the jail's current management, staffing, physical plant, and population exceeding 111 inmates (the design capacity of the jail) lead to the denial of inmates' basic human needs. n265 For convicted felons, the jail conditions violated the Eighth Amendment prohibition against cruel and unusual punishment, and with regard to pretrial detainees, offended the Fourteenth Amendment's due process guarantees. n266

Unlike Alberti III, however, the appellate court refused to shift all the responsibility over to the state, as urged by the county, with regard to its problems, which the county claimed were caused by the delayed transfer of prisoners from jail to prison. n267 The court so held for a variety of reasons. n268 First, state law established that the sheriff had primary responsibility for those in his custody, whether convicted felons or not. n269 Further, the federal court did not have jurisdiction to entertain a claim by a political subdivision against the state itself. n270 Similarly, there were fatal constitutional problems with regard to suing a state in federal court. n271

Nor did Madison County officials in Mississippi fare well in attempting to modify a consent judgment governing jail conditions entered some ten years prior, n272 although the magistrate appropriately modified the decree  [*647]  to reflect a "relaxation of constitutional mandates." n273 In the face of the ongoing problem of jail suicides, the court of appeals made it clear again that jail officials are under a clearly established constitutional duty to provide reasonable care for serious medical needs, which includes that for potential suicide victims, unless the deficiency reasonably serves a legitimate governmental objective. n274

2. Use of Deadly Force

The Fifth Circuit decided a case of great import with regard to standards that apply in the context of suspects, pretrial detainees, and prison inmates. This came up in a suit by family members of a pretrial detainee killed by deputies when attempting to escape from custody during transport from a holding cell to a jail. n275 The deputies testified that they shot him to prevent his escape. n276 They knew he was unarmed and had no reason to believe he endangered them or anyone else. n277 In fact, they shot him as he was trying to crawl under the automatic door at the sally port entrance of the Harris County Jail. n278

The court considered applying a Fourth Amendment standard, n279 but finally decided to apply a Fourteenth Amendment due process test, inasmuch as the court believed that the detainee was already in custody since he was being transferred from one facility to another. n280 Thus, because the prisoner was in custody, the deputies were authorized to use deadly force to prevent his escape, even if he posed no threat to them or others and was unarmed. n281

It is anomalous that the result could be different with regard to which constitutional amendment applies to the facts of the case. Indeed, as the dissent points out, the majority opinion appears to go to great length to  [*648]  construe Supreme Court precedent in order to reach the result it did. n282 The case is also remarkable for the fact that the circuit did not look at the reasonableness of the deputies' firing their guns twelve times simply to prevent the escape of the prisoner.

G. Prisons

1. Conditions of Confinement

The court of appeals continued to look with disfavor upon conditions of prison confinement cases. For example, the court held that an extended lock down of a minority prison inmate at the Louisiana state penitentiary in Angola for nearly four years, while some similarly situated white persons were released, did not violate the inmate's equal protection rights absent a showing of specific proof of intent to discriminate. n283 Further, the fact that the cell in which he was confined may have been uncomfortably hot could not alone support a finding that he was subject to cruel and unusual punishment in violation of the Eighth Amendment. n284

In another Louisiana case, the appellate court upheld an institutionwide strip search of 3,164 inmates at a state penitentiary. n285 The strip and body cavity searches were conducted in the presence of other inmates, several guards, and three bystanders. n286 The prisoner who brought suit conceded that a rash of murders, suicides, and assaults within the prison justified the strip searches, but argued that the constitution required that they be done in a manner that accords as much privacy as possible to prisoners during the visual body cavity searches. n287

The circuit ruled that the Fourth Amendment applied in this context and offered minimal protection. n288 The panel accorded great deference and flexibility to prison administrators carrying out their responsibilities; they acted appropriately given the need to search so many prisoners quickly in order to have an effective shake down. n289 The concurring judge agreed with the result but argued that Eighth Amendment standards would apply in this situation, rather than those of the Fourth Amendment, although the result would still be the same. n290

 [*649]  Further, the court of appeals made it somewhat more difficult for inmates to vindicate their rights through litigation, setting aside a finding of contempt on a motion filed by an inmate against state prison officials whom he alleged had violated a consent decree by confiscating and not returning non-religious tapes. n291 The court ruled, inasmuch as there was no federal constitutional right to receive and to listen to non-religious tapes, the district judge lacked jurisdiction to enforce a settlement decree in a section 1983 action which incorporated that provision. n292 Simply because the trial judge ratified an agreement settling litigation did not mean the court later would have jurisdiction over that issue for enforcement purposes, if it did not have so originally. n293

2. Criminal Justice Procedures

With regard to individual relief for prisoners in terms of their incarceration, the court explored the issue of when habeas corpus relief is appropriate, as opposed to relief under 42 U.S.C. § 1983. n294 Generally, section 1983 is an appropriate legal vehicle to attack unconstitutional parole procedures or conditions of confinement. n295 "However, when a prisoner challenges the result of a single defective parole hearing that claim must be pursued by writ of habeas corpus." n296

Procedurally, if a prisoner files a pro se lawsuit and it is unclear from the face of it whether he is attacking the conditions of confinement or his conviction, the proper step for the district court is to require repleading and probably stay proceedings in the section 1983 case until the pending criminal case has run its course. Thus, it will not be difficult to determine the relationship, if any, between the two. n297

 [*650]  H. Public Accommodations

Four private clubs sued the City of New Orleans challenging the constitutionality of its ordinance prohibiting discrimination in places of public accommodation; the clubs excluded African-American members. n298 In a rather complete overview of its law regarding Pullman n299 and Younger n300 abstention doctrines, the court found that federal intervention was appropriate to block enforcement of the ordinance against the clubs and not to require them to seek administrative relief under the "opt out" section of the anti-discrimination ordinance. n301

In short, the court felt that businesses could sue to protect the associational rights of their members under the First Amendment. In light of the association's small membership, the appellate panel felt it was clear that the exemption would apply. n302 The judges analyzed three U.S. Supreme Court cases dealing with the associational freedom of private clubs versus anti-discrimination ordinances. n303 The court spent considerable time distinguishing why the Supreme Court's Jaycees and Rotary Club cases were inapplicable to the Louisiana clubs, focusing on the size and national (and international) scope of the former organizations, the provisions of services in exchange for money, and the rather open recruiting style of membership (except, obviously, for excluded groups). n304

Ultimately, the judges ruled in favor of the clubs, concluding its opinion with a rather remarkable statement:

Discrimination can find no rest in a place of public accommodation. Whether it should be suffered to abide in private clubs is debatable among persons of good will. But, the Constitution trumps; those clubs have a right of private association under the First Amendment with which the government may not interfere impermissibly. n305

 [*651]  It is astonishing that any contemporary court would find that a person who sought to discriminate on the basis of race could be of good will, constitutionally protected perhaps, but certainly not of good will.

I. Attorney's Fees and Costs

The court of appeals reiterated its holding that, in the Fifth Circuit, it is clear that prior to the passage of the Civil Rights Act of 1991, which provided for the award of reasonable attorneys' fees and expert fees, n306 a plaintiff could not recover expert fees. n307 However, it reserved the question as to whether, in cases based on acts of discrimination committed prior to 1991, the new provision would apply to applications for expert witness fees when such applications are ruled on after the November 21, 1991 enactment date. n308

J. Access to the Courts

The Fifth Circuit also drew the parameters around a civil rights action against officials who prevent or interfere with adequate and meaningful access to the courts, interpreting that to mean prevention of exercising the right in toto. Hiding matters during discovery or concealing information after access to the courts has been achieved does not itself violate the access right because such a right is not so clearly established that a reasonable official would realize that this secretive conduct would violate the right, and the secretive activity in and of itself does not create a civil rights action. n309

Further, the court noted that the appellants, who were plaintiffs in a state court wrongful death action settled with the city for their son's death in an auto accident (alleging they settled it on less favorable terms because they did not know of the concealed evidence), could still find relief through exercise of state law remedies. n310

K. Due Process

In a case coming out of Marshall, Texas, the court of appeals held that an owner of a towing and wrecker service could not state a section 1983 claim against public officials by asserting constitutional claims arising from  [*652]  the revocation of permission to use the police radio frequency for his business. n311 The owner's due process claim failed because he could not show stigmatization or damage to his reputation; nor could he allege a property interest in remaining on the city and county's rotating on-call list for accident service. n312 The list simply lacked any contractual formation and basically was created, and used, on an ad hoc basis by the officials. n313

L. Style -- Concluding Comment

As might be expected from the modern day ability of word processors to "patch in" standard cites, footnotes, and opinion segments (especially on applicable precedent), the resulting text can turn flat, and be unduly lengthy. n314 Indeed, many decisions, no matter which judge is the author, read quite alike, as if a single scribe oversaw the preparation of each. Judge Patrick E. Higginbotham is a frequent exception, however, as was former Judge Irving L. Goldberg. Their opinions are often interesting, pithy, articulate, and just generally a pleasure to read. n315

Finally, as noted by the en banc decisions in Walton, n316 Schultea, n317 and Hare n318 overturning panel decisions, and the debate between the majority and dissent in Grabowski, n319 the court also seems to be wrestling with itself regarding the direction of some of its decisions, superseding some and offering different rationales for the same result.

 [*653]  III. CONCLUSION

Hopefully, this overview of Fifth Circuit decisions, and analyses of some of them, will be of assistance to the bench, bar, and academia as we together move toward the task of making our system of law more and more responsive to the needs of justice.

To those who spend many long hours in the quest for justice, this article is dedicated, out of great respect for their labors.

FOOTNOTES:
n1 See James C. Harrington, Civil Rights, Fifth Circuit Survey, 26 TEX. TECH L. REV. 447 (1995); James C. Harrington, Civil Rights, Fifth Circuit Survey, 25 TEX. TECH L. REV. 555 (1994).

n2 Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. Mar. 1995) (en banc) (affirming district judge's denial of motion to dismiss plaintiff's First Amendment claim, but reversing denial of motion to dismiss Schultea's claims of denied procedural due process). This en banc decision replaced an earlier panel decision, Schultea v. Wood, 27 F.3d 1112 (5th Cir. 1994).

n3 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160 (1993).

n4 See Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985). The Leatherman litigation has a long history. The Fort Worth district court originally dismissed the action on the grounds that the plaintiffs failed to satisfy the "heightened pleading requirement" imposed by the circuit on claims arising under 42 U.S.C. § 1983. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 755 F. Supp. 726, 731 (N.D. Tex. 1991). In the alternative, the district judge granted summary judgment against plaintiffs. Id. at 731-33. The court of appeals affirmed on the heightened pleading grounds. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954 F.2d 1054, 1055 (5th Cir. 1992). The Supreme Court reversed and remanded. Leatherman, 113 S. Ct. at 1163. Chief Justice Rehnquist, writing for a unanimous court, invalidated the heightened pleading requirement in regard to § 1983 actions against municipalities. Id. On remand, the trial judge adopted his alternate holding and granted summary judgment against plaintiffs. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1390 (5th Cir. 1994). The Fifth Circuit thereafter affirmed, ending the heightened pleading saga. Id.

n5 Schultea, 47 F.3d at 1430.

n6 See FED. R. CIV. P. 8 (entitled "General Rules of Pleading").

n7 See Elliott, 751 F.2d at 1473 (requiring "factual detail and particularity" by plaintiffs such that their pleadings, on their face, overcame defense of qualified immunity).

n8 Leatherman, 113 S. Ct. at 1161.

n9 See Schultea, 47 F.3d at 1434 n.1 (Jones, J., specially concurring) (explaining the continuing vitality of the heightened pleading standard ennunciated in Elliott, 751 F.2d at 1473).

n10 See, e.g., Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. Apr. 1995) (affirming dismissal of case because victim of murder attempt failed to allege sufficient facts implicating city so as to impose municipal liability under § 1983 when officers, so advised by informant, did not warn victim of attempt to solicit her murder).

n11 See Elliott, 751 F.2d at 1473.

n12 Schultea, 47 F.3d at 1430; see FED. R. CIV. P. 7(a).

n13 Schultea, 47 F.3d at 1430.

n14 Id. at 1433.

n15 Id.

n16 Id.

n17 Id. at 1433-34.

n18 Id. at 1434.

n19 Id.

n20 Id.

n21 Id.

n22 See id. at 1432-33.

n23 See id. at 1433.

n24 See id.

n25 See Wicks v. Mississippi State Employment Svcs., 41 F.3d 991, 997 (5th Cir. Jan. 1995) (mitigating harshness of heightened pleading requirement by allowing plaintiff initially failing to state a claim the opportunity to amend or supplement pleadings freely so as to state best case possible in a suit by public employee alleging race discrimination and violation of First Amendment rights by agency and supervisor).

n26 See id. at 994-97.

n27 Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. Jan. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. Sept. 1994) ("if officers of reasonable competence could disagree on whether or not there was probable cause to arrest a defendant, immunity should be recognized") (emphasis in original)).

n28 Briscoe v. LaHue, 460 U.S. 325, 326 (1983).

n29 Moore v. McDonald, 30 F.3d 616, 617-18 (5th Cir. Sept. 1994) (affirming summary judgment for Hood County, Texas deputy on perjury claims).

n30 Id. at 619.

n31 Wheeler v. Cosden Oil & Chem. Co., 734 F.2d 254, 261 (5th Cir.), modified on other grounds, 744 F.2d 1131 (5th Cir. 1984).

n32 See, e.g., Blackwell v. Barton, 34 F.3d 298, 300 (5th Cir. Sept. 1994) (reversing denial of qualified immunity summary judgment motion in a § 1983 action for illegal arrest and detention against peace officer who mistook arrestee for similar individual named in valid warrant and detained her approximately 25 minutes).

n33 See Mangieri v. Clifton, 29 F.3d 1012, 1014 (5th Cir. Aug. 1994) (suit by anti-abortion protestor alleging false arrest for First Amendment exercise of free speech).

n34 Id.

n35 TEX. PENAL CODE ANN. § 42.01(a)(5) (Vernon 1994).

n36 TEX. PENAL CODE ANN. § 42.04 (Vernon 1994).

n37 Mangieri, 29 F.3d at 1017.

n38 See id. at 1018.

n39 Stroik v. Ponseti, 35 F.3d 155, 156 (5th Cir. Sept. 1994), cert. denied, 115 S. Ct. 1692 (1995).

n40 Id.

n41 Id. at 157.

n42 Id.

n43 Reese v. Anderson, 926 F.2d 494, 500 (5th Cir. 1991) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).

n44 Stroik, 35 F.3d at 157 (citing Graham, 490 U.S. at 395).

n45 See Harrington, supra note 1, at 480-83.

n46 See AM. ASS'N OF UNIV. WOMEN EDUC. FOUND., HOSTILE HALLWAYS: THE AAUW SURVEY ON SEXUAL HARASSMENT IN AMERICA'S SCHOOLS 7-25 (1993) [hereinafter Hostile Hallways].

n47 Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 523 (5th Cir. Aug. 1995).

n48 Id. at 525-26.

n49 Id.

n50 Id. at 529.

n51 Id.

n52 Id. at 531.

n53 Id. (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 n.7 (5th Cir.) (en banc), cert. denied, 115 S. Ct. 70 (1994).

n54 Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 199 (5th Cir. Nov. 1994) (affirming dismissal of case), cert. denied, 115 S. Ct. 1361 (1995).

n55 Id.

n56 Id. at 201-02.

n57 See id. at 202.

n58 Id. at 203.

n59 Id. at 209 (Goldberg, J., dissenting).

n60 Id.

n61 Compare Walton v. Alexander, 44 F.3d 1297 (5th Cir. Feb. 1995) (en banc) (reversing denial of qualified immunity, and finding no special relationship) with Walton v. Alexander, 20 F.3d 1350 (5th Cir. 1994) (reversing denial of qualified immunity, but finding special relationship), reh'g en banc, 44 F.3d 1297 (1995).

n62 489 U.S. 189 (1989).

n63 Walton, 44 F.3d at 1299.

n64 Id. at 1310 (Parker, J., concurring specially).

n65 Hagan v. Houston Indep. Sch. Dist., 51 F.3d 48, 52-53 (5th Cir. Apr. 1995).

n66 Id. at 52.

n67 Because they are often factually intertwined for analytical purposes in the employment context, one should look also to Title VII precedent on retaliation claims, if only for analogous assistance. See, e.g., "Title VII -- Retaliation," infra, pp. 641-42, and accompanying notes.

n68 Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir. Mar.) (vacating summary judgment for sheriff and holding that sheriff was not entitled to qualified immunity), cert. denied, 116 S. Ct. 1691 (1995).

n69 Connick v. Myers, 461 U.S. 138 (1983).

n70 Pickering v. Board of Educ., 391 U.S. 563 (1968).

n71 Vojvodich, 48 F.3d at 885-86.

n72 Id. at 887.

n73 Id. (citing Click v. Copeland, 970 F.2d 106 (5th Cir. 1992) (holding sheriff's failure to allege disruption fatal to his claim of qualified immunity)).

n74 Id.

n75 Id.

n76 See Pierce v. Texas Dep't of Criminal Justice, 37 F.3d 1146, 1151 (5th Cir. Nov. 1994) (upholding judgment against African-American female corrections officer in Title VII suit and against her Title VII and First Amendment retaliation claims), cert. denied, 115 S. Ct. 1957 (1995).

n77 Id.

n78 See id. Causation can be shown by: (1) looking at the employee's latest disciplinary record; (2) whether the employer follows typical policy and procedures in terminating or disciplining the employee; and (3) whether there is a causal relationship between the employee's conduct and adverse employment action discharge. See Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. Sept. 1994). The analysis is highly fact specific. Id. (citing St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2756 (1993)).

n79 See Davis v. Ector County, 40 F.3d 777 (5th Cir. Dec. 1994).

n80 Id. at 780.

n81 Id.

n82 Id. at 782 (citation omitted).

n83 Id. at 783 (citation omitted).

n84 Id. at 782 (citation omitted).

n85 Id. at 783 (citation omitted).

n86 Id.

n87 Id. at 781.

n88 Id.; TEX. REV. CIV. STAT. ANN. art. 6252-16a § 2 (Vernon 1993).

n89 Davis, 40 F.3d at 787.

n90 Id.

n91 Steverson v. Goldstein, 24 F.3d 666 (5th Cir. June 1994), cert. denied, 115 S. Ct. 731 (1995).

n92 Id. at 668.

n93 Id.

n94 Id. The deputy received an augmented penalty which had never happened before in "several hundred" appeals to the civil service commission. Id. The commission added seven days to his original three-day suspension. Id.

n95 Id. at 669.

n96 Id. at 671.

n97 Id. at 668.

n98 See Garcia v. Reeves County, 32 F.3d 200 (5th Cir. Sept. 1994) (suit by fifteen former employees of Reeves County Sheriff's Department, claiming retaliatory discharge for political reasons) (citing McBee v. Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984)).

n99 Id. at 205 (citing Barrett v. Thomas, 649 F.2d 1193 (5th Cir. 1981) (holding that party affiliation is an appropriate requirement for effective performance of high public officials)).

n100 See id. at 204-05.

n101 Montgomery v. Brookshire, 34 F.3d 291 (5th Cir. Sept. 1994) (reversing summary judgment in favor of sheriff and holding that genuine issue of material fact regarding whether or not personnel staff exemption applied precluded summary judgment). The sheriff also played a role in another important employment case decided by the circuit. See supra note 79 and accompanying text.

n102 Montgomery, 34 F.3d at 294-95.

n103 Id. at 295 (citing Teneyuca v. Bexar County, 767 F.2d 148, 151-52 (5th Cir. 1985)). The factors include: (1) whether elected official has plenary power of appointment and removal; (2) whether employee is personally accountable to only that official; (3) whether employee represents elected official in public eye; (4) whether elected official exercises considerable control over position; (5) level of position within organization's chain of command; and (6) actual intimacy of working relationship between official and employee. Id.

n104 Connick v. Myers, 461 U.S. 138 (1983).

n105 Pickering v. Board of Educ., 391 U.S. 563 (1968).

n106 Copsey v. Swearingen, 36 F.3d 1336, 1344-45 (5th Cir. Oct. 1994) (reversing directed verdict and holding evidence was sufficient for jury on First Amendment claim and upholding qualified immunity for defendants).

n107 Id.

n108 Id. at 1343-45.

n109 Tompkins v. Vickers, 26 F.3d 603 (5th Cir. July 1994) (dismissing appeal of superintendent from denial of summary judgment based on qualified immunity).

n110 Id. at 610.

n111 Hale v. Townley, 45 F.3d 914, 914 (5th Cir. Feb. 1995).

n112 Hale v. Fish, 899 F.2d 390, 391 (5th Cir. 1990).

n113 Hale, 45 F.3d at 916.

n114 Id. at 917-18.

n115 Id. at 916. This case withdraws the opinion previously issued on May 30, 1994, appearing at 19 F.3d 1068 (5th Cir. 1994).

n116 Id. at 920. See also Musslewhite v. State Bar, 32 F.3d 942 (5th Cir. Sept. 1994) (dismissal of action by attorney claiming that State Bar of Texas was persecuting him maliciously and harassing him in bad faith).

n117 DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 592 (5th Cir. May 1995).

n118 Id. at 596.

n119 Id. at 592.

n120 Id. at 596-97.

n121 Id. at 595-96.

n122 Id. at 596.

n123 Id.

n124 Harris v. Forklift Sys., Inc., 114 S. Ct. 367, 370-71 (1993).

n125 DeAngelis, 51 F.3d at 596.

n126 Id.

n127 Id.

n128 Id.

n129 Id. at 596-97.

n130 Id. at 597 n.6.

n131 Id. at 596-97 (footnote and citations omitted).

n132 See Garcia v. Elf Atochem N. Am., 28 F.3d 446, 446 (5th Cir. July 1994) (affirming summary judgment against male employee who alleged sexual harassment from a former male supervisor who sexually touched him).

n133 Id. at 452.

n134 Ellert v. University of Texas, 52 F.3d 543, 543 (5th Cir. May 1995) (affirming summary judgment against plaintiff).

n135 Portis v. First Nat'l Bank, 34 F.3d 325, 329 (5th Cir. Nov. 1994) (reversing and remanding judgment granted defendant) (citing Elliott v. Group Medical & Surgical Serv., 714 F.2d 556, 556 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984)).

n136 Id. at 329-30 (distinguishing Elliott, 714 F.2d at 556).

n137 EEOC v. Bailey Ford, Inc., 26 F.3d 570, 571 (5th Cir. July 1994).

n138 Id. at 573 (Justice, J., concurring and dissenting).

n139 See, e.g., Houston v. Lafayette County, 51 F.3d 547, 547 (5th Cir. May 1995); Clark v. Calhoun County, 21 F.3d 92, 93 (5th Cir. 1994); FED. R. CIV. P. 52(a).

n140 EEOC v. Manville Sales Corp., 27 F.3d 1089, 1089 (5th Cir. Aug. 1994), cert. denied, 115 S. Ct. 1252 (1995).

n141 Id. at 1095.

n142 Id.

n143 Id.

n144 Id.

n145 Id.

n146 EEOC v. American Airlines, 48 F.3d 164, 164 (5th Cir. Mar. 1995).

n147 Id. at 164. See Murnane v. American Airlines, 667 F.2d 98, 101 (D.C. Cir. 1981) (holding that American Airline's age 40 guidelines for captain applicants was a bona fide occupational qualification), cert. denied, 456 U.S. 915 (1982).

n148 EEOC v. American Airlines, 48 F.3d at 166.

n149 Id. at 172-73.

n150 115 S. Ct. 879, 885-86 (1995).

n151 Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106, 1108 (5th Cir. Apr. 1995) (affirming jury verdict and judgment for $ 159,467 against Kinetic Concepts, Inc.).

n152 Id.

n153 Id.

n154 Id.

n155 Id.

n156 Id. at 1110.

n157 Id.

n158 Id.

n159 Id.

n160 See Ray v. IUKA Special Mun. Separate Sch. Dist., 51 F.3d 1246 (5th Cir. May 1995).

n161 Id. at 1251.

n162 Id. at 1249-51.

n163 Id. at 1249.

n164 Id.

n165 Id. at 1248.

n166 Id. at 1252 (citing Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993)).

n167 Id. at 1249.

n168 Id. at 1254.

n169 Id. at 1253.

n170 Id. at 1254 (citing Bueno v. City of Donna, 714 F.2d 484, 496 (5th Cir. 1983) ("Reinstatement is normally 'an integral part of the remedy for a discharge which contravenes the First Amendment, and may not be denied on the ground that reinstatement would revive old antagonisms.'" (citations omitted))).

n171 See, e.g., Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir. Nov. 1994) (reversing damage award of $ 188,866.70 for age-based termination in violation of the ADEA, 29 U.S.C. §§ 621-34 (1988)), reh'g en banc granted, 49 F.3d 127 (5th Cir. Mar. 1995). See also id. at 546-49 (Garza, J., dissenting).

n172 EEOC v. Louisiana Office Community Servs., 47 F.3d 1438, 1442 (5th Cir. Mar. 1995) (affirming judgment for state agency, holding that EEOC failed to establish that social service agency's proffered reason for not promoting employee to supervisory position was pretextual).

n173 Id. at 1445.

n174 Id. at 1445-46.

n175 Id. at 1447.

n176 See also supra notes 59-60 and accompanying text.

n177 See Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1281 (5th Cir. July 1994), cert. denied, 115 S. Ct. 1099 (1995).

n178 Id. at 1284.

n179 Id.

n180 Id.

n181 Id. at 1285.

n182 Id. (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977)).

n183 See id. at 1302 (Johnson, J., dissenting in part).

n184 Id. at 1303.

n185 Id. at 1303 n.1.

n186 Id.

n187 Id.

n188 Id. at 1311.

n189 Id.

n190 Id. at 1311-12.

n191 Id. at 1307.

n192 Id.

n193 See Harrington (1995), supra note 1, at 513-14.

n194 Marcantel v. Dep't of Transp. & Dev., 37 F.3d 197 (5th Cir. Nov. 1994); Edwards v. City of Houston, 37 F.3d 1097 (5th Cir. Nov. 1994), reh'g en banc granted, 49 F.3d 1048 (5th Cir. 1995).

n195 The circuit has granted a petition for rehearing en banc of this case. Edwards, 49 F.3d at 1049.

n196 Edwards, 37 F.3d at 1108.

n197 Id. at 1103.

n198 Id. at 1105-06.

n199 Id. at 1108.

n200 Id.

n201 Id. at 1108-15.

n202 See id. at 1111-12.

n203 Id.

n204 Id.

n205 Id.

n206 Id. at 1113.

n207 See id. at 1112-14.

n208 Id. at 1110.

n209 Id.

n210 Id. at 1114.

n211 Id. at 1109-10.

n212 Marcantel v. Dep't of Transp. & Dev., 37 F.3d 197, 198-99 (5th Cir. Nov. 1994) (affirming summary judgment for the state).

n213 Id. at 202. By virtue of the written settlement, the African-American employee had withdrawn his civil service complaint in return for $ 5,000 and the Department of Transportation & Development's (DOTD) promise to appoint him to the next open position of parish maintenance supervisor. Id. at 198. The DOTD Secretary had found merit in the employee's claim, and thus approved the settlement. Id.

n214 Id. at 201.

n215 Id.

n216 Id. at 202.

n217 See National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 715 (5th Cir. Dec. 1994).

n218 See id. (affirming dismissal of Texas constitutional due course of law and equal protection claims. TEX. CONST. art. I, §§ 19, 3a) (citing Welch v. Thompson, 20 F.3d 636, 644 (5th Cir. 1994)).

n219 See Griffin v. City of Dallas, 26 F.3d 610 (5th Cir. July 1994) (reversing and remanding racial discrimination suit of discharged police officer against City of Dallas, finding three hundred day limitations period applicable).

n220 Id. at 612.

n221 Id.

n222 Id. at 613.

n223 Id.

n224 Id.

n225 Id.

n226 Id.

n227 Id. at 614.

n228 44 F.3d 372, 374 (5th Cir. Feb. 1995) (on retaliation claim, jury award of $ 33,000 back pay, $ 3,000 compensatory damages, and, in tort action, $ 100,000 punitive damages). With regard to questions of Title VII retaliation claims, it is often helpful to consult free speech precedent for analytical purposes. See, e.g., "Free Speech: Government Employees," supra, pp. 10-14 (will change), and accompanying notes.

n229 Hadley, 44 F.3d at 376.

n230 Id.

n231 See Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir. Sept. 1994) (affirming summary judgment for Orleans Parish School System and school board; prospective employee had been convicted of armed robbery and served nearly ten years in federal prison).

n232 Id.

n233 See, e.g., Harrington (1995), supra note 1, at 512 and cases cited therein.

n234 See, e.g., Jack Kemp, Racial Fairness: Equal Opportunity Remains a Vital American Goal, DALLAS MORNING NEWS, Aug. 20, 1995, at 5-J; MICHAEL LIND, THE NEXT AMERICAN NATION: THE NEW NATIONALISM AND THE FOURTH AMERICAN REVOLUTION (1995).

n235 See Lauderdale County Sch. Dist. v. Enterprise Consol. Sch. Dist., 24 F.3d 671 (5th Cir. June), cert. denied, 115 S. Ct. 484 (1994).

n236 Id.

n237 Id. at 674-77.

n238 Id.

n239 See id. at 683-84. The court used the standard established in Milliken v. Bradley, 418 U.S. 717 (1974) (requiring showing inter-district intent to segregate to support cross-district relief).

n240 See Lauderdale County Sch. Dist., 24 F.3d at 675.

n241 Id.

n242 See 418 U.S. 717 (1974).

n243 114 S. Ct. 2364, 2372 (1994).

n244 See Wells v. Bonner, 45 F.3d 90, 94-95 (5th Cir. Feb. 1995) (reversing grant of qualified immunity in action against police officers, alleging malicious prosecution, false arrest, and excessive force); Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir. 1992), cert. denied, 113 S. Ct. 1298 (1993); Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc), overruled by Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994). Plaintiff's excessive force claim failed for not showing significant injury under the standard used for pre-Morel claims. Wells, 45 F.2d at 96.

n245 See Campbell v. City of San Antonio, 43 F.3d 973, 981 (5th Cir. Jan. 1995) (affirming dismissal of case).

n246 Id. at 975-76.

n247 Id. at 978-79.

n248 Enlow v. Tishomingo County, 45 F.3d. 885 (5th Cir. Jan. 1995) (affirming dismissal of section 1983 suit against local and state officers for prosecuting illegal gambling).

n249 See Grabowski v. Jackson County Pub. Defenders Office, 47 F.3d 1386 (5th Cir. Mar. 1995) (affirming denial of habeas corpus relief as to guilty plea, but reversing dismissal of due process claim).

n250 Id. at 1398.

n251 See id. at 1392-98.

n252 See id. at 1398 (Smith, J., concurring and dissenting). One of the more remarkable aspects of the case is the reliance of both the majority opinion and the dissent on unpublished opinions, something the court typically frowns on when done by appellate counsel.

n253 Id. at 1399-1400 (Smith, J., concurring and dissenting).

n254 Id. at 1400-02 (Smith, J., concurring and dissenting).

n255 Id. at 1401 (Smith, J., concurring and dissenting).

n256 Id. at 1399-1400 (Smith, J., concurring and dissenting).

n257 Id. at 1398 (Smith, J., concurring and dissenting).

n258 See Hostile Hallways, supra note 46.

n259 See Alberti v. Sheriff of Harris County, 937 F.2d 984 (5th Cir. 1991), cert. denied, 504 U.S. 930 (1992) [hereinafter Alberti I]; Alberti v. Sheriff of Harris County, 978 F.2d 893 (5th Cir. 1992), cert. denied, 113 S. Ct. 2996 (1993) [hereinafter Alberti II]; Alberti v. Sheriff of Harris County, 406 F. Supp. 649 (S.D. Tex. 1975).

n260 See Alberti v. Klevenhagen, 46 F.3d 1347, 1369 (5th Cir. Feb. 1995) [hereinafter Alberti III].

n261 Id. at 1368.

n262 See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).

n263 Alberti III, 46 F.3d at 1369.

n264 See Harris v. Angelina County, 31 F.3d 331, 339-40 (5th Cir. Sept. 1994) (affirming injunctive remedial relief by trial judge in the form of population caps for jail and denial of third-party complaint by county against state).

n265 Id. at 334-35.

n266 Id. at 334.

n267 See id. at 339-40.

n268 Id. at 338-40.

n269 Id. at 337.

n270 Id. at 338-39.

n271 Id. at 339 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984)).

n272 See Cooper v. Noble, 33 F.3d 540, 545 (5th Cir. Oct. 1994) (affirming refusal of magistrate judge to grant relief from consent judgment and holding officials in contempt for violating consent decree), supplemented by 41 F.3d 212 (5th Cir. Dec. 1994).

n273 See id. at 545 & n.8 (distinguishing Wilson v. Seiter, 501 U.S. 294 (1991), and Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) (holding that modification of consent decree may be warranted when statutory change corrects a situation the decree was designed to correct)).

n274 See Hare v. City of Corinth, 36 F.3d 412, 416-17 (5th Cir. Oct. 1994) (en banc) (dismissing appeal of officials from denial of summary judgment on qualified immunity).

n275 Brothers v. Klevenhagen, 28 F.3d 452, 454 (5th Cir. Aug.), cert. denied, 115 S. Ct. 639 (1994).

n276 Id.

n277 Id.

n278 Id.

n279 See Tennessee v. Garner, 471 U.S. 1, 3 (1985) (holding that use of deadly force to prevent escape by a felony suspect was unconstitutional under the Fourth Amendment unless officer had probable cause to believe suspect posed significant threat of death or serious physical injury to officer or others).

n280 See Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir.), cert. denied, 113 S. Ct. 2998 (1993).

n281 Brothers, 28 F.3d at 457-58.

n282 Id. at 458-59.

n283 Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. May 1995) (affirming summary judgment).

n284 Id. at 581.

n285 Elliott v. Lynn, 38 F.3d 188, 189 (5th Cir. Nov. 1994), cert. denied, 115 S. Ct. 1976 (1995).

n286 Id.

n287 Id.

n288 Id. at 191-92.

n289 Id.

n290 Id. at 192-93 (Garwood, J., concurring).

n291 See Saahir v. Estelle, 47 F.3d 758, 760 (5th Cir. Mar. 1995) (reversing contempt finding and order that prison officials return tapes or reimburse inmate plaintiff).

n292 Id. at 761.

n293 Id.

n294 See Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166 (5th Cir. Oct. 1994) (reversing dismissal of § 1983 complaint challenging parole board's consideration of voided prior convictions when making parole eligibility determinations and enjoining the parole board from doing so).

n295 Id. at 168 (citations omitted).

n296 Id. See also Boyd v. Biggers, 31 F.3d 279 (5th Cir. Aug. 1994) (per curiam) (holding that inmate cannot challenge constitutionality of conviction or sentence in § 1983 action and thus suit was frivolous); Jackson v. Vannoy, 49 F.3d 175 (5th Cir. Apr.) (dismissing § 1983 case for illegal arrest that resulted in revocation of probation and parole for lack of ripeness), cert. denied, 116 S. Ct. 148 (1995).

n297 Mackey v. Dickson, 47 F.3d 744 (5th Cir. Mar. 1995) (vacating dismissal of complaint as frivolous, and remanding).

n298 Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1485-86 (5th Cir. Jan.), cert. denied, 115 S. Ct. 2583 (1995).

n299 Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941).

n300 Younger v. Harris, 401 U.S. 37 (1971), superseded by statute as stated in In re Super Van, 161 B.R. 184, 191-92 (Bankr. W.D. Tex. 1993).

n301 Louisiana Debating & Literary Ass'n, 42 F.3d at 1489-91.

n302 Id. at 1495-96.

n303 Compare New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988) (voiding ordinance very similar to that of New Orleans) with Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987), and Roberts v. United States Jaycees, 468 U.S. 609 (1984) (both striking down discriminatory rules).

n304 Louisiana Debating & Literary Ass'n, 42 F.3d at 1495-97.

n305 Id. at 1500.

n306 42 U.S.C. § 2000e-5(k) (1988 & Supp. III 1991).

n307 Shipes v. Trinity Indus., 31 F.3d 347, 349 (5th Cir. Sept. 1994).

n308 Id.

n309 Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. July 1994) (reversing denial of motion to dismiss on qualified immunity grounds).

n310 Id. at 431 n.9.

n311 Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. Jan. 1995) (affirming dismissal of plaintiff's due process claims, but reversing dismissal of First Amendment claim against city and police chief).

n312 Id. at 935-37.

n313 Id. at 939.

n314 See, e.g., Banuelos v. McFarland, 41 F.3d 232 (5th Cir. Jan. 1995) (affirming trial court holding that "counsel substitute" who represented inmate in prison disciplinary proceeding did not act under color of state law for purposes of civil right statute and prison disciplinary hearing satisfied due process, despite inmate's claim he was not allowed to call witnesses; and evidence was insufficient to establish that prison officials were deliberately indifferent to inmate's serious medical needs); Babb v. Dorman, 33 F.3d 472 (5th Cir. Sept. 1994) (devoting seven pages to affirming dismissal of arrestee's § 1983 claim for false arrest, malicious prosecution, and conspiracy, all resulting from arrest and prosecution for public intoxication); Macias v. Raul A., 23 F.3d 94 (5th Cir. June) (spending five and one half pages disposing of clearly frivolous, pro se civil rights complaint about traffic citations for malfunctioning taillight and lack of liability insurance), cert. denied, 115 S. Ct. 220 (1994); see also Gibson v. Rich, 44 F.3d 274 (5th Cir. Jan. 1995) (holding office entitled to immunity in § 1983 false arrest case).

n315 See, e.g., Schultea v. Wood, 47 F.3d 1427 (5th Cir. Mar. 1995) (en banc).

n316 Compare Walton v. Alexander, 44 F.3d 1297 (5th Cir. Feb. 1995) (en banc) with Walton v. Alexander, 20 F.3d 1350 (5th Cir. 1994), reh'g en banc, 44 F.3d 1297 (1995).

n317 Compare Schultea, 47 F.3d 1427 with Schultea v. Wood, 27 F.3d 1112 (5th Cir. Aug. 1994), reh'g en banc, 47 F.3d 1427 (1995).

n318 Compare Hare v. City of Corinth, 36 F.3d 412 (5th Cir. Oct. 1994) with Hare v. City of Corinth, 22 F.3d 612 (5th Cir. June), withdrawn on reh'g, 36 F.3d 412 (1994).

n319 Grabowski v. Jackson County Pub. Defenders Office, 47 F.3d 1386 (5th Cir. Mar. 1995).

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