Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



July 7, 1992

GARY L. PALMER, Plaintiff,
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.


 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 have waived the right to challenge that decision at a later time.

 Williamsburg Wax Museum v. Historic Figures, Inc., 258 App. D.C. 124, 810 F.2d 243, 250 (D.C. Cir. 1987).

 Here, the only issue open for consideration on remand is whether plaintiff proved that any discriminatory act against him occurred within the 300-day period preceding the filing of his charge with the EEOC. Since, on remand, it is reaffirmed that plaintiff suffered discrimination between August 22 and August 30, 1985 and thus within the statutory limitations period, his complaint was timely filed. All other aspects of the September and November 1988 unappealed district court findings and conclusions were binding and final at that time. Therefore, the status of Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268 , 109 S. Ct. 1775 (1989), either before or after the enactment of the Civil Rights Act of 1991, is irrelevant. Accordingly, the law of the case requires an award to plaintiff of the full measure of relief as determined in the November 3, 1988 Order.

 Louis F. Oberdorfer


 Date: July 7, 1992

 ORDER - July 8, 1992, Filed

 For the reasons stated in the accompanying Memorandum, it is this 7th day of July, 1992, hereby

 ORDERED: that judgment be entered in favor of plaintiff against defendants for the following amounts:

 1. Back pay in the amount of $ 9,495.00;

 2. Pay for unused leave in the amount of $ 1,286.00;

 3. Pre-judgment interest in the amount of $ 2,059.00 (calculated at 6% per annum);

 4. Post-judgment interest on the foregoing amounts, calculated at 8.15% per annum, *fn2" commencing with the entry of the November 3, 1988 judgment; and it is further

 ORDERED: that defendants make or cause to be made whatever adjustment in plaintiff's retirement annuity is necessary to place plaintiff in the position he would have been in had he been promoted to the rank of Deputy Fire Chief in 1982, and had he received a DFC/step 2 salary from September 1, 1984 to September 1, 1985; and it is further

 ORDERED: that defendants pay plaintiff a retroactive annuity adjustment equal to the difference between the annuity payments he has actually received since September 1, 1985 and the amounts he would have received had the annuity adjustment required by this Judgment been made on September 1, 1985, together with interest on that amount, calculated at 6% per annum through November 3, 1988, and calculated at 8.15% thereafter until paid; and it is further

 ORDERED: that plaintiff is awarded, pursuant to 42 U.S.C. § 2000e-5(k), his reasonable attorneys' fees and costs incurred in defending against defendants' appeal of the November, 1988 decision and in prosecuting his case on remand. Pursuant to Rule 215 of the Rules of this Court, the parties are directed to confer and reach an agreement on all fee issues. On September 18, 1992 at 9:00 a.m. counsel and the parties will appear for a status conference at which the Court will (1) determine whether settlement of any or all aspects of the fee matter has been reached, (2) enter judgment for any fee or cost on which agreement has been reached, (3) establish an appropriate schedule for the litigation of any remaining fee issues, and (4) make such other determinations as are appropriate under Rule 215.

 Louis F. Oberdorfer


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.