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Berry v. City of Bossier City9/8/2005
the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Under the circumstantial evidence test of McDonnell Douglas, supra, a plaintiff is first required to establish a prima facie case by showing that he: (1) is a member of a protected class; (2) was qualified for the position; (3) was terminated; and (4) was replaced by someone outside the protected class. Seagrave v. Dean, 2003-2272 (La. App. 1st Cir. 6/10/05), 2005 WL 1366483. Second, assuming the plaintiff demonstrates a prima facie case, the burden of production shifts to the employer to articulate a legitimate, clear, specific and nondiscriminatory reason for discharging the employee. Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. And in attempting to satisfy this burden, the plaintiff, once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision, must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Brittain v. Family Care Services, Inc., supra.
According to an affidavit filed by Chief Faith, after finishing his training at the academy, a firefighter works for a year on a probationary basis. Upon satisfactory completion of this period, the firefighter is "certified" as a permanent firefighter. His certification date determines his rank in his class. To qualify for seniority promotion, firefighters must pass a test; of those who qualify, the position is awarded to the one with the highest rank, i.e., the earliest certification date.
In their depositions, neither McGee nor Lacoure was able to provide any facts supporting the claim of racial discrimination in certification. In fact, McGee testified that he believed he "got certified where I should have got certified." In their subsequent affidavits, each of these two plaintiffs asserted that, due to information that had been brought forward during discovery, he now believed that he had "facts which support his contention that he was unfairly certified based on race." Both stated that they were not told that the agility test times were considered in certification. Each stated in his affidavit that the white training officers told him the test was pass or fail and that he only had to pass to be considered for the next class. According to both of their affidavits, these training officers also suggested taking their time to avoid mistakes eliminating them from passing the test; however, the training officers told them to finish within the time limit. The affidavits do not state that the training officers gave these admonishments only to the black recruits.
Chief Faith submitted an affidavit dated September 30, 2004, in which he stated that, as a training officer who administered agility tests in the mid 1990s, he and the other training officers gave every recruit the same information. The recruits were told that the agility test was pass/fail, that it was necessary to pass the test to even be considered by the BCFD, and that they should be careful as failure on this exam would eliminate them from employment consideration with the BCFD. Chief Faith further stated that none of the recruits were ever told that the agility test times would be used for certification.
Affidavits from J.T. Wallace, Jr., the BCFD chief from 1992 to 1999, were also submitted. He stated that Lacoure was a member of the April 6, 1994 class, that he finished 12 out of 14
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