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PALMER v. BARRY

July 7, 1992

GARY L. PALMER, Plaintiff,
v.
MARION BARRY, et al., Defendants.



The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Plaintiff, Gary L. Palmer, a former Battalion Chief with the District of Columbia Fire Department, claims defendants (the District of Columbia or the District) unlawfully discriminated against him from September 1982 through his retirement in August 1985. He alleges that he was not promoted to the position of Deputy Fire Chief because of the District's policy of equalizing white and black promotions in violation of Title VII. This employment discrimination case is currently before the Court on remand from the Court of Appeals. See Palmer v. Barry, 282 App. D.C. 290, 894 F.2d 449 (D.C. Cir. 1990).

 Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on December 9, 1985 and filed this pending suit on May 14, 1987. After a two day bench trial, the Court, in its September 30, 1988 Memorandum, found that the District discriminated against plaintiff from September of 1982 until his retirement on August 30, 1985, but that the District demonstrated nondiscriminatory reasons for its failure to promote plaintiff from July 1984 to 1985. This led to the conclusion that "it is more likely than not likely that denial of plaintiff's promotion from 1982 to mid-1984 proximately resulted from a racially motivated policy to hold back some white promotions to Deputy Chief until the number of black deputies equalled or exceeded the number of white deputies." Palmer v. Barry, 1988 U.S. Dist. LEXIS 17343 (D.D.C. 1988). A subsequent Order, filed November 3, 1988, awarded plaintiff back pay from December 1983 *fn1" and an adjustment in retirement benefits from September 1982 to his retirement on August 30, 1985.

 In November the District filed a motion for reconsideration, arguing that plaintiff had not filed a timely EEOC complaint. The District argued that because the discrimination against plaintiff ceased in mid-1984, his EEOC complaint, filed in early December of 1985, was untimely under 42 U.S.C. § 2000e-5(e). A second Memorandum and Order dated November 18, 1988 rejected the District's timeliness claim, concluding that plaintiff's "allegations of discrimination after mid-1984 were [not] unconnected with his allegations of discrimination before that time." Palmer v. Barry, 1988 U.S. Dist. LEXIS 17345 (D.D.C. 1988).

 On appeal, the District raised only the narrow issue of timeliness, rejected in the November 18, 1988 Memorandum and Order. See Palmer v. Barry, 282 App. D.C. 290, 894 F.2d 449, 453 (D.C. Cir. 1990). The District did not challenge on appeal any of the findings of fact, and in fact, did not even place the trial record before the Court of Appeals. Moreover, the District did not challenge the scope of the remedy awarded plaintiff. Unable to determine from the September and November Memoranda whether the District's discriminatory treatment of plaintiff extended beyond mid-1984, the Court of Appeals remanded the case for clarification of this issue. The Court of Appeals directed that:

 On remand, the District Court must make specific findings as to whether the District discriminated against Palmer after mid-1984, applying the principles of either Burdine and McDonnell Douglas or Price Waterhouse. If there was such discrimination, then it would appear that Palmer's complaint was timely filed.

 Id.

 On remand, a July 13, 1991 Memorandum found that (1) the District had articulated a sufficient nondiscriminatory reason under Price Waterhouse for not promoting plaintiff from mid-1984 through August 22, 1985, and therefore that no actionable act of discrimination occurred during that period, but that, (2) the District had discriminated against plaintiff from August 22, 1985 until he retired on August 30, 1985. Regarding this latter period, the Memorandum concluded:

 Plaintiff[] presented convincing evidence that Coleman observed the Mayor's policy of equalizing black and white promotions in the Department after mid-1984 and through 1985. It may reasonably be inferred that Coleman did not provide Palmer with a date and time or documentation because he was clinging to the earlier policy: when push came to shove, Coleman was reluctant to promote Palmer without promoting a black in tandem out of deference to the Mayor's earlier policy.

 Palmer v. Barry, 1991 U.S. Dist. LEXIS 9696 (D.D.C. 1991). Although the Memorandum found that the District had discriminated against plaintiff within the 300 days preceding the filing of the EEOC complaint, it restricted plaintiff's recovery to the nine days immediately preceding the filing of the complaint (August 22, 1985 to August 30, 1985). The Memorandum directed plaintiff to file a proposed Order implementing the July 13, 1991 decision.

 Further consideration confirms that the District discriminated against plaintiff from August 22, 1985 to August 30, 1985, but that the reduction of plaintiff's recovery to nine days back pay was erroneous.

 The governing elementary principle is "that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal." Laffey v. Northwest Airlines, 238 App. D.C. 400, 740 F.2d 1071, 1089-90 (D.C. Cir. 1984). As a corollary, a district court cannot reconsider, on remand, decisions made at an earlier stage of the litigation and not raised on appeal:

 Under the law of the case doctrine, a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes law of the case for future stages of the same litigation, and the parties are deemed to ...


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