Dinner to Announce New LDF President William T. Coleman Jr. and Launch the 1971 Appeal of the Black Lawyer Training Program

    In the

(Emtrt at %  lliutih Btatvs
October Term, 1984

Jack K. Moore,

v.
Petitioner,

City of Charlotte, etc., et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Louis L. L esesne, Jr.
Gillespie & Lesesne 
Suite 980
United Carolina Bank Building 
212 South Tryon Street 
Charlotte, North Carolina 28281 
(704) 372-5700

J. L eV onne Chambers 
R onald L. E llis 
Eric Schnapper*

NAACP Legal Defense & 
Educational Fund, Inc.

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioner

^Counsel of Record



i

QUESTIONS PRESENTED *

1 . Did the court of appeals exceed 
its authority under Rule 52, F.R.C.P., by 
overturning the credibility determinations 
of the trial judge?

2. Did the court of appeals exceed 
its authority under Rule 52, F.R.C.P., by 
reversing the trial court's factual 
findings of discrimination?

* The Fourth Circuit decision in this 
case was issued prior to this Court's 
opinion in Anderson v. City of Bessemer 
City, No. 8 3-1623, which directly 
addressed the proper scope of appellate 
review of credibility determinations, 
and which concluded that the Fourth 
Circuit "misapprehended ... the clearly 
erroneous standard." (Slip opinion, 
p.1). We suggest that the decision in 
this case be vacated and remanded for 
further consideration in light of 
Anderson.



ii

PARTIES

The parties to this proceeding are 
Jack K. Moore and the City of Charlotte, 
North Carolina.



iii

TABLE OF CONTENTS
Page

Questions Presented ...... ........  i
Parties ...........................  ii
Table of Authorities .............. iv
Opinions Below ....................  1
Jurisdiction ......................  2
Statute and Rule Involved ........  2
Statement of the Case ............. 4
Reasons for Granting the Writ ....  10
Conclusions .......................  23

APPENDIX
Opinion of the Court of Appeals,

January 28, 1985 ............. 1a
District Court Findings of Fact 

and Conclusions of Law,
July 29, 1983 ................ 39a



VI

TABLE OF AUTHORITIES
Cases Page
Anderson v. City of Bessemer i,10

City, No. 83-1623 ............. 1 1,12,1 3
17,21,23

Pullman-Standard Co. v. Swint,
456 U.S. 273 ( 1982 ...........  14-15,21

Wainwright v. Witt, 53 U.S.L.W.
4108 ( 1985) ...................  10

Other Authorities
28 U.S.C. § 1254{ 1 ) ...............  2
42 U.S.C. § 2000e-2(a ) ............ 2
Rule 52, Federal Rules of

Civil Procedure ............... i,3
17,21,22



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1984

JACK K. MOORE, 
Petitioner, 

v.
CITY OF CHARLOTTE, etc., et al.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioner Jack K. Moore respectfully 
prays that a Writ of Certiorari issue to 
review the judgment and opinion of the 
United States Court of Appeals for the 
Fourth Circuit entered in the proceeding 
on January 28, 1985.



OPINIONS BELOW

The decision of the court of appeals, 
which is not yet reported, is set out at 
pp. 1a-38a of the Appendix. The district 
court's Findings of Fact and Conclusions 
of Law, which are not reported, are set 
out at pp. 39a-52a of the Appendix.

JURISDICTION

The judgment of the court of appeals 
was entered on January 28, 1985. Juris­
diction of this Court is invoked under 28 
U.S.C. § 1 254( 1).

STATUTE AND ROLES INVOLVED

Section 703(a) of Title VII of the 
1964 Civil Rights Act, 42 U.S.C. §2000e- 
2(a), provides in pertinent part:

It shall be an unlawful 
employment practice for an 
employer -



3

(1) to ... discriminate 
against any individual with 
respect to his compensation, 
terms, condition, or privileges 
of employment, because of such 
individual's race, color, 
religion, sex, or national 
origin....

Rule 52(a), Federal Rules of Civil 
Procedure, provides in pertinent part:

In all actions tried upon the 
facts without a jury ... the 
court shall find the facts 
specially and state separately 
its conclusions of law there­
on.... Findings of fact shall 
not be set aside unless clearly 
erroneous, and due regard shall 
be given to the opportunity of 
the trial court to judge of the 
credibility of the wit­
nesses ....

STATEMENT OF THE CASE

In 1978 police officials in 
Charlotte, North Carolina, concluded that 
several officers had been involved in 
unrelated efforts to influence the 
disposition of traffic tickets. No 
disciplinary measures of any kind were



4

imposed on any of the four other officers 
involved. Petitioner, one of the few 
black supervisors on the police force, was 
suspended without pay for 85 days and then 
demoted from sergeant to patrolman. No 
white officer in the City of Charlotte had 
ever been disciplined in any way for the 
conduct which petitioner candidly acknow­
ledged, and no white officer had ever been 
demoted for any other offense of any kind. 
Petitioner brought this action under Title 
VII of the Civil Rights Act of 1 964, 
alleging that the unprecedentedly severe 
sanction imposed on him was the result of 
racial discrimination.

The nature of the misconduct which 
was the purported basis for petitioner's 
demotion is not in dispute. In the fall 
of 1 977 a private citizen named Eddie 
Drakeford was arrested for driving while 
under the influence of alcohol. Peti­
tioner, who was an acquaintance of



5

Drakeford, requested two other officers,
Grose and Cureton, to "help" Drakeford
(4a). Petitioner did not ask Grose or
Cureton to take any improper action;
indeed, he did not suggest that they take
any specific action at all. Petitioner
neither received money or anything of
value from Drakeford, nor did he make any
such offer to either Grose or Cureton.
Petitioner candidly acknowledged the
nature of his action as soon as he was
asked about it by his supervisors. In
March 1978 the Charlotte police chief
suspended petitioner and filed charges
against him with the city Civil Service 

1
Commission. In June 1 978 the commission

The police chief also charged petitioner 
with bribery. The individual alleged to 
have bribed petitioner, Buddy Patterson, 
had been acquitted of a criminal charge of 
bribery in February 1978, one month before 
administrative charges were brought 
against petitioner. Petitioner was 
subsequently criminally prosecuted for 
bribery, despite the earlier acquittal of 
the alleged bribe payer, but that prosecu­
tion was dismissed with prejudice for lack



6

found petitioner guilty of the conduct 

which he had acknowledged from the outset, 
ordered him demoted from sergeant to 

patrolman, and suspended him without pay 
for 85 days.

Petitioner commenced this action in 
August, 1982, alleging that his demotion 
was the result of racial discrimination. 
Petitioner advanced two specific factual 
claims at trial. First, he alleged that 

when white officers were charged with 
similar misconduct it was the practice of 
the city neither to investigate nor 
discipline those officers. Second, he 
asserted that white officers accused of 
equally or more serious offenses had 
either not been disciplined at all, or had 

been disciplined less harshly. Petitioner

of evidence. (App. 6a). The Civil 
Service Board also rejected the adminis­
trative allegation that petitioner had 
accepted a bribe.



7

alleged that no white officer had ever 
been demoted by the city under any 
circumstances.

The trial judge ruled in favor of 
petitioner on each of these factual 
issues. With regard to previous demo­
tions, the judge concluded:

No white sergeant found guilty 
of a rules violation has ever 
been demoted by the Board.
(46a).

The trial court found that the actions 
with which petitioner was charged had not 
in the past been treated as serious 
misconduct:

White officers who committed 
violations similar to those 
committed by plaintiff not only 
were not prosecuted before the 
Board, but were not disciplined at all. (43a) .



8

Finally, the court held that the penalty 

imposed on petitioner was excessive when 
compared to the misconduct for which 
whites had in the past been disciplined:

[A] number of white police 
sergeants have been found 
guilty by the Board of viola­
tions of severity comparable to 
those committed by plaintiff, 
but have received much milder 
punishment than that imposed on 
plaintiff.... Defendant has 
not articulated any explanation 
for the difference in severity 
of the punishment imposed on 
plaintiff by the Board and that 
imposed on white sergeants 
found to have violated the 
Civil„ Service Rules. (45a- 
46a) .

Based on these subsidiary factual f ind- 
ings, the district court concluded that 
petitioner had been demoted because of his 
race. ( 49a).

See also 50a. (" [A] black employee was
demoted and suspended for 85 days while 
similarly situated whites either received 
much lighter discipline or went un­
punished" ) .



9

The court of appeals disagreed with 
each of the trial judge's factual find­
ings. The appellate court acknowledged 
that finding that no sanctions had ever 
been imposed on white officers guilty of 
the same conduct with which petitioner was 
charged. The appellate court disagreed, 
however, with the trial judge's evaluation 
of the severity of the offenses of which 
whites had been guilty (32a-36a). The 
court of appeals acknowledged that no 
white officer in the history of Charlotte 
had ever been demoted, but insisted that 
petitioner's demotion was entirely 
warranted. (33a). The appellate court 
therefore concluded that the district 
court finding of intentional discrimina­
tion was "clearly erroneous" (36a).



10

REASONS FOR GRANTING THE WRIT

The Fourth Circuit's January 1985 
opinion in this case presents the same 

problem of appellate review of trial court 
credibility determinations which was 
resolved by this Court's subsequent 

decision in Anderson v. City of Bessemer 

City, No. 83-1623 (March 19, 1985). The 
Fourth Circuit, writing prior to this 
Court's decision in Anderson, gave no 
deference to the trial court credibility 
determinations in this case. Anderson has 
now condemned that appellate practice, 
holding that a trial judge's credibility 
assessments are often virtually conclu­
sive :

When findings are based on 
determinations regarding the 
credibility of witnesses, Rule 
52 demands even greater 
deference to the trial court's 
findings; for only the trial 
judge can be aware of the 
variations in demeanor and tone 
of voice that bear so heavily 
on the listener's understanding



of and belief 
Wainwright v.

( 1 985)...
3u3ge1s finding 
decision to credit 
mony of one of 
witnesses, each 
told a coherent 
plausible story 
contradicted by extrinsic 
evidence, that finding, if not 
internally inconsistent, can 
virtually never be clear error. 
(Slip opinion, p.10).

in what is said. 
Witt, 469 U.S. 
. [W]hen a trial 
is based on his 

the testi- 
two or more 
of whom has 
and facially 
that is not

In the instant case, the court of appeals, 

acting without the advantage of this 

Court's decision in Anderson, gave little 
heed to the trial judge's findings 

regarding which of the witnesses was to be 

believed.
In this case, as in Anderson, the 

trial court's credibility assessment 
played a key role. In light of the fact 
that it was the practice of the city not 
to file administrative charges against 
white officers alleged to have attempted 
to influence the disposition of traffic 
offenses, petitioner complained at trial



12

that the mere decision to pursue such 

charges against him was itself discrimina­
tory. The defendant relied on testimony 

that charges were pressed against peti­
tioner, not because he had sought to 
exercise such influence, but solely 
because the city mistakenly believed that 

petitioner had accepted a bribe to do so. 
(44a). The district judge who heard that 
testimony concluded that the reason 

articulated was a "sham" (44a) and that 
the defendants had "failed credibly to 
articulate a legitimate reason" for their 
action. (46a) (Emphasis added). Despite 

the credibility assessment inherent in the 
trial judge's express finding, the 

appellate panel made its own assessment 
and concluded that the decision to press 
charges against petitioner was not 
racially motivated. (29a-31a).



13

This Court's decision in Anderson 
concluded that in that case "the Court of 
Appeals misapprehended and misapplied the 
clearly erroneous standard." (Slip 
opinion, p.1). The instant case was 
decided by the same Court of Appeals at a 
time when the mistaken Fourth Circuit 
opinion in Anderson was the controlling 
law of the circuit in that court of 
appeals. One of the appellate judges in 
the instant case served on the panel in 
Anderson. The court of appeals panel in 
this case, not surprisingly, engaged in 
precisely the sort of d£ novo fact finding 
that it had utilized barely a year earlier 
in the ill-conceived panel decision in 
Anderson itself.

The circumstances of this case 
present a straightforward factual dispute. 
In 1 978 petitioner and several white 
officers were found to have attempted to 
influence the handling of traffic viola­



14

tions. No disciplinary measures of any 
kind were taken against the whites; 
petitioner, on the other hand, was 
suspended for 85 days and demoted. No 
white officer had previously been demoted 
for any reason. The central issue at 
trial was whether this apparently dissimi­
lar treatment was the result of racial 

discrimination or of some legitimate 

consideration. The trial judge concluded 
that petitioner was demoted and suspended 
as a result of racial discrimination.

The critical subsidiary factual 
findings of trial judge were that "[w]hite 
officers who committed violations similar 
to those committed by plaintiff ... were 
not disciplined at all" (43 a) and that 
"much milder punishment" had been imposed 
on whites guilty of "violations of 
severity comparable to those committed by 
plaintiff." (45 a). Under the standard 
of review established by this Court, and



15

applied in other circuits, these findings
should have been upheld if supported by
substantial evidence. See Pullman-
Standard v. Swint, 456 U.S. 273 (1982).
The record in this case was clearly
sufficient to meet that standard. Police
officials concluded that at several whites
were guilty of the same conduct as
petitioner and should be disciplined, yet
none of those whites were disciplined in

3
any way. (21a, 23a). The record also 
showed that whites had consistently been 
subjected to only temporary suspensions 
for misconduct at least as serious as that 
for which petitioner was permanently 
demoted:

The Fourth Circuit itself conceded that 
one of those whites "had violated police 
regulations by voiding two traffic tickets 
for friends and by fraudulently securing 
prosecutorial dismissal of one traffic case." (21a) .



16

Sanction Imposed 
Offense on White Officer

Possession of 60 day
4

suspension
heroin
Defrauding the 30 day

D
suspension

city £
Defrauding the 10 day

O
suspensioncity 7

Suggesting bombing 10 day
/

suspensionof building
8

suspensionCompelling man to 2 day
pay prostitute Q
Falsifying
report

police 10 day
y

suspension
10Assaulting

civilian
20 day suspension

J.A. 103-04.
5 J.A. 102-04.
6 J.A. 191, 194-197.
7 J.A. 118.
8 J.A. 121.
9 J.A. 167.
10 J.A. 199, 201



17

While reasonable judges might disagree
about some of the details of these
incidents, clearly the evidence was
sufficient to sustain the judgment of the
district court under the limited standard
of review contemplated by Rule 52. But
here, as in Anderson, the Fourth Circuit
proceeded to make its own assessment of
the evidence, rather than to defer to the

11
assessment made by the trial court.

The extent to which the appellate 
panel disregarded the role of the district 
court under Rule 52 is highlighted by the 
fact that here, as in Anderson, the court 
of appeals "sustained" a factual defense 
which had neither been offered by the 
defendants at trial nor suggested by them 
on appeal. Throughout these proceedings 
both plaintiff and defendant have agreed

^  2a (trial court mistakenly "equated 
greater and lesser offenses"), 34a 
(demotion "consistent" with punishment 
imposed on whites.)



that the severity of the offense with 
which petitioner and white officers had 
been charged was to be assessed on the 
basis of the nature of the conduct 
involved. The only explanation ever 
offered by the defense for the more 
lenient treatment of the white officers 
was that their misconduct simply was not 
as serious as petitioner's.

In its opinion the court of appeals 
simultaneously "articulated", assessed and 
sustained a completely new explanation for 
the defendant's conduct. In the view of 
the court of appeals, the gravity of the 
misconduct of black and white officers was 
to be weighed solely with reference to the 
section of the Civil Service Rule under 
which they were charged, not the actual 
conduct involved. (25a-27a). Thus if 
three whites and one black were guilty of 
seeking to influence the disposition of 
traffic offenses, but charges were filed

- 18 -



19

only against the black, the decision to 
discipline only the black would be 
self-justifying, since he alone was 
actually charged with violating a Civil 
Service Rule. In this case petitioner was 
charged with violating two rules that had 
never before been invoked against a single 
white officer (33a); in the Fourth 
Circuit's view that made petitioner's case 
so unique that no comparison with white
officers was appropriate. (35a). Much of
the appellate panel's opinion is devoted
to an analysis of the various Civil
Service Rules under which petitioner had 

12
been charged.

Similarly, the sole reason adduced at 
trial for pressing charges against 
petitioner before the Civil Service 
Commission was that the city believed him 
guilty of bribery, despite the recantation 
of the only witness against him. (44a). 
On appeal the Fourth Circuit articulated 
and upheld a very different reason, the 
pendency of the remaining charges of 
seeking to influence the charges against 
Drakeford. (29a-31a). But that simply 
was not the explanation given by the 
defense witness at trial.



20

Whatever the probative value of this 

explanation, it is an explanation for 
which all credit belongs to the court of 

appeals. None of the defense witnesses 

ever suggested that the differing treat­
ment of black and white officers was due 
to their being charged under different 
rules. None of the defense witnesses even 
referred to the Civil Service Rules relied 
on by the Fourth Circuit. Neither in its 
arguments in the district court, nor in 
its lengthy appellate brief, did counsel 
for the city advance this explanation or 
even mention the Civil Services Rules. 
Thus while the Fourth Circuit complained 

that the trial judge had "ignored the 
department's own classification of 
disciplinary offenses" (3a), it is clear 
that the trial judge did so because the 
defendant itself attached no importance to 
those classifications.



21

The Fourth Circuit practice of 
sustaining on appeal factual defenses 
never adduced at trial circumvents the 
commands of Rule 52 far more effectively 
than the practice condemned in Anderson 
and Pullman Standard Co. v. Swint. If 
appellate courts are at liberty to 
consider factual contentions never 
presented at trial, there will be no need 
to deffer to the findings of the trial 
judge, since the trial judge will not be 
given any opportunity to consider or rule 
on those contentions. In this case the 
Fourth Circuit did not purport to claim 
that the district judge had committed 
"clear error" in rejecting the Civil 
Service Rule explanation, since that 
explanation had never been offered at 
trial, the district judge had never passed 
on it, and there were no factual findings 
to review. Thus once the appellate panel 
undertook to consider a factual defense



22

never presented at trial, it regarded 
itself as free to disregard completely the 
limitations of Rule 52, and to make its 
own factual findings unencumbered by any 
need to defer to the views of the judge 
who heard the case at trial. If such a 
practice were permissible, the district 
courts would be stripped of any role in 
the fact finding process, and Rule 52 
would be a dead letter.

CONCLDSION

For the above reasons the Court 
should grant the petition, vacate the 
decision of the court of appeals, and 
remand the case for further consideration 
in light of Anderson v. City of Bessemer 
City.



23

Respectfully submitted,

LOUIS L. LESESNE, JR.
Gillespie & Lesesne 
Suite 980
United Carolina Bank Building 
212 South Tryon Street 
Charlotte, North Carolina 28281 
(704) 372-5700
J. LEVONNE CHAMBERS 
RONALD L. ELLIS 
ERIC SCHNAPPER *
NAACP Legal Defense & 
Educational Fund, Inc.
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

COUNSEL FOR PETITIONER 
* COUNSEL OF RECORD



a p p e n d i x



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 84-1430

JACK K. MOORE,
Appellee,

versus
CITY OF CHARLOTTE, NORTH CAROLINA,

Appellant,
and

CHARLOTTE POLICE DEPARTMENT,
Defendant.

Appeal from the United States 
District Court for the Western District 

of North Carolina, at Charlotte. 
James B. McMillan, District Judge. 

(C/A 82-0495-M)

Argued: October 29, 1984
Decided: January 28, 1985

Before
WIDENER, PHILLIPS and WILKINSON, 

Circuit Judges.
FI Douglas Canty, Office of the City 
Attorney for Appellant; Louis L. Lesesne, 
Jr. (Gillespie & Lesesne on brief) for 
Appellee.



2a

WILKINSON, Circuit Judge:

The city of Charlotte, North Carolina 
suspended police officer Jack K. Moore and 
demoted him in rank from a sergeant to a 
patrolman. According to city officials, 
the action was a legitimate exercise of 
disciplinary authority. According to 
Moore, the action was an unlawful exercise 
in racial discrimination. On this appeal, 
we examine the means by which Moore may 
prove his claim and we review the conclu­
sion of the district court that Moore in 
fact did prove his claim. Because we find 
that conclusion to be clearly erroneous, 
we reverse.

In this case the district court erred 
in its evaluation of disciplinary viola­
tions within the department of police. It 
equated greater and lesser offenses in a 
manner that would discourage a department 
from acting on the reasonable belief of



3a

corruption in its midst. in addition, the 
district court ignored the department's 
own classification of disciplinary 
offenses in its assessments of comparable 
seriousness. These failures together 
rendered meaningless the requirement of 
dissimilar sanctions for similar offenses 
that constitutes a prima facie case of 
racial discrimination in a Title VII 
disciplinary case. See McDonald v. Santa 
Fe Trail Transportation Co., 427 U.S. 273, 
283 n. 11 (1976).

I

On September 11, 1977, Officers D. L.
Grose and C. C. Leebrick of the Charlotte 
Police Department arrested Eddie Winfield 
Drakeford for driving while under the 
influence of alcohol. Before the 
scheduled date of Drakeford's trial, 
December 9, 1977, Sergeant Jack Moore



4a

asked Officer Grose and Officer Ronald 
Cureton to "help" Drakeford with his case. 
Cureton subsequently spoke to two wit­
nesses who were essential to the prosecu­
tion of Drakeford, attempting to dissuade 
them from testifying. When neither of the 
witnesses appeared for trial, Cureton 
requested the assistant district attorney 
to drop the charge because the state could 
not prove its case. The action against 
Drakeford was accordingly dismissed.

The conduct of Moore and Cureton came 
quickly to the attention of Major Samuel 
H. Killman, then commander of the Internal 
Affairs Division of the Charlotte Police 
Department, and Killman began to investi­
gate the dismissal of the Drakeford case. 
When Killman first interviewed Moore on 
December 16, 1977, Moore admitted that he 
had contacted the two officers and 
acknowledged that his actions violated 
department regulations. The fact of



5a

Moore's improper interference was not at 
that time, and has never been, a disputed 
issue. The motivation for Moore's 
improper interference, however, was a less 
clear question during Killman's investiga­
tion. Moore maintained that he had acted 
solely because of his longtime personal 
friendship with Drakeford. But Buddy 
Patterson, a mutual acquaintance of Moore 
and Drakeford, stated to Major Killman and 
two other police officers that Drakeford 
had paid Patterson $450 to help with the 
ticket, that Patterson had enlisted the 
aid of Moore, and that Patterson had given 
the money to Moore when the charge against 
Drakeford was dismissed.

Allegations of bribery added a new 
dimension to the case of the Drakeford 
traffic ticket, expanding the investiga­
tion from an internal disciplinary matter 
to a possible criminal prosecution. This 
criminal component culminated with trial



6a

of Patterson, Cureton and Moore. In the 
joint trial of Patterson and Cureton in 
February 1 978 , the judge of the Superior 
Court of Mecklenburg County granted a 
non-suit motion for both defendants on the 
charge of bribery, and the jury acquitted 
both defendants on charges of conspiracy 
to commit bribery. In the trial of Moore 
in May 1 978 , the prosecution voluntarily 
dismissed its case with prejudice when 
Patterson disavowed the allegations of 
bribery that he had made to the police 
investigators.

Meanwhile, in the departmental 
investigation, the authority to act on 
Killman's findings lay initially with J. 
C. Goodman, then chief of the Charlotte 
Police Department. Under the Charlotte 
city charter, Goodman could act in three 
ways: he could end all disciplinary 
proceedings without punishing Moore, he 
could order punishment for Moore to the



7a

extent of a thirty-day suspension without 
pay, or he could cite Moore to the 
Charlotte Civil Service Commission. If 
Goodman cited Moore to the Commission, 
that board would hold a hearing, make 
factual findings, and decide the punish­
ment of Moore, which could include any 
suspension, demotion, or dismissal.

On March 29, 1978, Goodman suspended 
Moore without pay and referred his case to 
the Commission for final disposition. In 
his citation, Goodman charged Moore with 
four violations of Civil Service rules and 
regulations: conspiracy to dismiss the 
Drakeford case in return for a bribe, 
influencing of a government official in a 
matter relating purely to personal 
advantage, conduct unbecoming an officer, 
and interference with the proceedings of a 
trial. On June 21, 1978, the Commission 
found Moore to be not guilty of the first 
charge but guilty of the other three



-  8a

charges. The suspension without pay that 

had begun on March 29 was made effective 
through June 21, and Moore was demoted 
from a sergeant to a patrolman.

After appealing the decision of the 

Commission in North Carolina state court, 

Moore —  who is a black man —  complained 
to the Equal Employment Opportunity 
Commission that the actions of Chief 

Goodman and of the Charlotte Civil Service 
Commission were motivated by unlawful 
racial discrimination. The EEOC notified 

Moore of his right to sue on May 28, 1982, 
and Moore filed the present action in the 

District Court for the Western District of 
North Carolina on August 25, 1982. The 
District Court held a bench trial on March 
29 and March 30, 1983. In addition to a 
number of documentary exhibits, the 
evidence included the testimony of Moore, 
Cureton, Killman, and Mr. George Hager, to 
whom we shall return shortly. The court



9a

entered its memorandum of decision on July 
29, 1983. ^Finding that “defendant
intentionally discriminated against
plaintiff on the basis of his race," the

court ordered the City of Charlotte to
reinstate Moore as a sergeant and to repay
his lost wages with prejudgment interest.

1
The city appealed to this court.

The city raised three other issues on 
this appeals the adequacy of the EEOC 
right-to-sue letter, the responsibil ity of 
the city for the actions of the Civil 
Service Board, and the availability of 
prejudgment interest. The essence of the 
first claim is that the district court 
lackedsubject-matterjurisdictionbecause 
Moore’s right-to-sue letter was issued by 
the EEOC rather than by the Attorney 
General, the authority designated by Title 
VII for cases in which the defendant is a 
political subdivision of a state. 42 
U.S.C. § 2000e—5(f)(1). We reject this 
argument under the reasoning of Perdue v . 
Roy Stone Transfer Corp., 690 F.2d 1091 
(4tH~Cir. 1982), and Russell v. American 
Tobacco Co. , 528 F.2d 3TTT4t¥TTFTT?75T7 
cert. denied, 425 U.S. 935 (1976). 
Entitlement to the letter, without actual 
receipt of it, is sufficient to support 
federal jurisdiction. Perdue, 690 F.2d at 
1093. Moore's entitlement is unaffected 
by any EEOC assumption of Justice Depart­
ment duties, as Moore may not be penalized 
for an EEOC failure to fulfill its 
statutory duties even if such a failure is



10a

II

The decisive issue in this trial, a 
Title VII suit claiming racially disparate 
treatment, was the question of whether the 
defendant's disciplinary actions were 

motivated b y  Moore's race. 42 U.S.C. 
§ 2Q00e-2(a). The district court's

resolution of this issue was a finding of 
fact, Pullman-Standard v. Swint, 456 U.S. 

273, 285-90 (1982), and may be reversed by 
this court only if the determination was 
"clearly erroneous" within the meaning of 

Fed.R.Civ.P. 52(a). Id . at 290 . The 
"clearly erroneous" standard of review, as

presented by the administrative division 
of responsibility between the EEOC and the 
Attorney General. Russell, 528 F.2d at 
365.
Because we find reversible error in the 

district court's determination of liabi­
lity, we do not reach the other two 
assignments of error.



we recently noted in discussing the import 
of Rule 52(a) for motivational issues in 
Title VII litigation

may properly be based upon a 
conclusion that, without regard 
to that the 'actual' facts may 
be, the findings under review 
were induced by an erroneous 
view of the controlling legal 
standard; or are not supported 
by substantial evidence; or 
were made without properly 
taking into account substantial 
evidence to the contrary or are 
against the clear weight of the 
evidence considered as a whole. 
In sum, these establish that 
'clearly erroneous' review is 
properly focused upon fact­
finding processes rather than 
fact-finding results. the 
appellate function is to insure 
that the process shall have 
been principled; the function 
is not authoritatively to find 
the, 'facts' first instance, or 
to affirm or deny that the 
facts 'found' by the trial 
court are the 'actual' facts of 
the case.

Miller v. Mercy Hospital, 720 F .2d 356, 
361 (4th Cir. 1983) (references omitted).



12a

Applying this mandate, we are 

convinced that the fact-finding process in 

the court below was not properly prin­
cipled. The appropriate fact-finding 

process in a Title VII suit for racially 
disparate treatment has been addressed by 
the Supreme Court many times. See 

especially McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973); Texas 
Department of Community Affairs v. 

Burdine, 450 U.S. 248 (1981); United 
States Postal Service Board of Governors 
v. Aikens, 460 U.S. 711 (1983). These 
cases suggest several different ways in 
which a plaintiff may show, and a court 
may find, liability under Title VII. A 

plaintiff may prove the discriminatory 
intent of the defendant through direct 
evidence, by introducing statements of the 
defendant. Aikens, 460 U.S. at 714 n.3. 
Alternatively, a plaintiff may prove the 
discriminatory intent through circumstan­



13a

tial evidence. The Court has 
explicit guidance for the order 
and the allocation of burdens 
cases:

provided 
of proof 
in such

First, the plaintiff has the 
burden of proving by the 
preponderance of the evidence a 
prima facie case of discrimina­
tion. Second, if the plaintiff 
succeeds in proving the prima 
facie case, the burden shifts 
to the defendant to articulate 
some legitimate, nondiscrimina- 
tory reason for the employee's 
rejection. Third, should the 
defendant carry this burden, 
the plaintiff must then have an 
opportunity to prove by the 
preponderance of the evidence 
that the legitimate reasons 
offered by the defendant were 
not its true reasons, but were 
a pretext for discrimination.

Burd ine, 450 U.S. at 252-53 (citations
omitted) .

Moore offered no direct evidence of 
discriminatory intent held by any city 
officials. Proceeding exclusively through 
circumstantial evidence, he first faced 
the threshold Burdine burden of establish­



14a

ing a prima facie case of discrimination. 
This burden, the Court has stated, "is not 
onerous." Id. at 253. To satisfy the 
requirement, Moore needed only to raise an 
inference that city officials acted with 
discriminatory intent. He might have done 
so through evidence of a general pattern 
of racial discrimination in the employment 
practices of the defendant. Reynolds v . 
Abbeville County School District No. 60, 
554 F . 2d 638 , 642 ( 4th Cir. 1 977). But 
Moore offered no evidence of any such 
pattern of discriminatory behavior by city 
officials. Moore might still have sup­
ported an inference of discriminatory 
intent, and discharged his prima facie 
burden, by eliminating the most common 
nondiscriminatory reasons for the dis­
parate treatment. Burd ine, 450 U.S. at 
253-54. The Court in McDonnell Douglas 
described one model for making this sort 
of case, a model for plaintiffs who claim



15a

to have been rejected in employment 
applications for discriminatory reasons. 
411 U.S. at 802.

Moore is in a situation somewhat 
different from that of the McDonnell 
Douglas plaintiffs. He claims to have 
been the victim of a discriminatory 
disciplinary decision rather than a 
discriminatory hiring decision. As 
several courts have recognized, the 
McDonnell Douglas prima facie model is 
less useful in this context. See e.g. King 
v. Yellow Freight System, Inc., 523 F.2d 
879, 882 ( 8th Cir. 1975); Burdette v. FMC 
Corporat ion, 566 F.Supp. 808, 814 
(S.D.W.Va. 1983). The Court specifically 
anticipated this problem in McDonnell 
Douglas, noting that "the facts necessari­
ly will vary in Title VII cases, and the 
specification adtove of the prima facie 
proof required from respondent is not 
necessarily applicable in every respect to



16a

differing factual situations." 411 U.S. 
at 802 n.13. Although the particular 

elements of the McDonnell Douglas prima 

facie model are not apposite here, the 
purpose behind that model —  elimination 

of the most common nondiscriminatory 
reasons for the contested decision -- 
remains valid, and that purpose informs 
the construction of an appropriate model 

for disciplinary cases.
The most important variables in the 

disciplinary context, and the most likely 
sources of different but nondiscriminatory 
treatment, are the nature of the offenses 
committed and the nature of the punish­
ments imposed. The purpose of the prima 
facie requirement is therefore served and 
the requirement met upon a showing (1) 

that plaintiff engaged in prohibited 
conduct similar to that of a person of 

another race, color, sex, religion, or 
national origin, and (2) that disciplinary



17a

measures enforced against the plaintiff 
were more severe than those enforced 
against the other person. Cf. Burdette, 
566 F.Supp. at 815. These variables, of 
course, do not exhaust the possible 
nondiscriminatory reasons for disparate 
treatment: establishment of a prima facie
case is necessary, but not sufficient, in 
order for the plaintiff to prevail Furnco 
Construction Corp. v. Waters, 438 U.S. 
567, 579-80 (1978). The defendant might 
yet advance a permissible rationale for 
treating the compared employees different­
ly. As in Burdine, the defendant bears 
the burden of introducing such an explana­
tion through evidence. 450 U.S. at 
254-56. The defendant may not discharge 
its burden by merely restating the offense 
for which the plaintiff was disciplined; 
plaintiff must already have known this 
information in order to make a prima facie 
case. Defendant's burden is designed to



18a

focus the contested issues at trial and to 

ensure the production of evidence avail­
able only to the defendant, such as 
insight into the discretionary factors 

underlying defendant's decision to 
discipline two individuals differently. 

See E. Bartholet, Proof of Discriminatory 
Intent Under Title VII: United States 
Postal Service Board of Governors v. 
Aikens, 70 California L. Rev. 1201, 

1212-1219 (1982). If the defendant 
fulfills this obligation, the plaintiff 
must rebut the proffered explanation and 

meet the ultimate burden of proving 

intentional discrimination. Burdine, 450 
U.S. at 256.

Ill

Applying the analytic framework 
described above to the evidence presented 
below, we can only conclude that Moore



19a

failed to prove a prima facie case of 
racial discrimination. As previously 
noted, Moore offered no direct evidence of 
racially based intent in the disciplinary 
decisions, and he offered no evidence of a 
general pattern of racial bias in police 
department employment actions. His prima 
facie case rested entirely on an attempt 
to show that he had been treated less 
favorably than white officers who had 
committed similar misconduct. The 
district court accepted this contention in 
its findings of fact, noting

6(c). White officers who com­
mitted violations similar to 
those committed by plaintiff 
not only were not prosecuted 
before the Board, but were not 
disciplined at all.
9. ...a number of white police 
sergeants have been found 
guilty by the [Civil Service] 
Board of violations of severity 
comparable to those committed 
by plaintiff, but have received 
much milder punishment than 
that imposed on plaintiff.



20a

These findings, however, rest on an 
unprincipled conception of "similarity" 
and "comparability," a structural flaw 
that renders the fact-finding process 

"clearly erroneous" under the reasoning of 

Miller v. Mercy Hospital, 720 F . 2d 356, 

361 (4th Cir. 1983). This error is best 
illustrated through close examination of 
each of the individual decisions that 

Moore claims to have been tainted by 
racial bias.
(a) The Decision to Discipline Moore

Plaintiff relied heavily at trial on 
his claim that chief Goodman had not taken 
any disciplinary action against white 
Charlotte police officers who were accused 
of interfering in the prosecution of 
traffic charges. To show the existence of 
such officers, plaintiff offered the 

testimony of Captain George Hager and a 
July 14, 1978 memorandum from Major 
Killman to Chief Goodman detailing



21a

Killman's "Investigation of Alleged 
'Ticket-Fixing.'" Hager, according to 
plaintiff's interpretation of the evi­
dence, had violated police regulations by 
voiding two traffic tickets for friends 
and by securing prosecutorial dismissal of 
one traffic case. These incidents 
appeared in the Killman report along with 
similar anecdotes involving other officers 
and a brief conclusion that several rules 
violations were apparent. The staff 
committee reviewing Killman's investiga­
tion recommended that disciplinary action 
be taken against Hager and three other 
officers, but Goodman made no charges 
against any officer mentioned in the 
report.

In determining for purposes of 
Moore's prima facie case whether Goodman 
had as much cause to discipline Hager as 
he had cause to discipline Moore, we look 
first for illumination to the Supreme



22a

Court decision in McDonald v. Santa Fe 

Trail Transportation Co., 427 U.S. 273 
(1976). The Court there noted that "Of 

course, precise equivalence in culpability 
between employees is not the ultimate 
question: as we indicated in McDonnell
Douglas, an allegation that other 'employ­

ees involved in acts against [the employ­
er] of comparable seriousness . . . were--—-    r     
nevertheless retained . . .  is adequate to 
plead an inferential case . . . ." id. at 
283 n. 11 (emphasis retained). This 
mandate sets for lower federal courts the 

difficult, but not unfamiliar, task of 
assessing the gravity of offenses on a
relative scale. Cf. Solem v. Helm, ____

U.S. ____ , 103 S.Ct. 3001, 3011 (1983).
As in other contexts, the "comparison can 
be made in light of the harm caused or 
threatened to the victim or society, and 
the culpability of the offender." Id.



23a

When the information that Goodman 
possessed in the Moore case is projected 
on this screen of "comparable seriousness" 
alongside the information presented in the 
Killman report, the contrast is startling. 
On March 29, 1977, when Goodman referred 
Moore's case to the Civil Service Commis­
sion, Patterson had not yet recanted his 
allegations of bribery. Goodman accord­
ingly acted under the reasonable belief 
that corruption threatened his department; 
not only police department regulations but 
the integrity of the legal system had 
possibly been violated. The reasonable­
ness of Goodman's belief, and the gravity 
of Moore's suspected offense, are under­
lined by the simultaneous effort of the 
district attorney to prepare criminal 
prosecution of Moore. The charge against 
Hager and other officers for "fixing 
traffic tickets" simply pales when 
compared to the specter of a police



2 4 a

sergeant conspiring to commit bribery. 

The district court, in concluding other­

wise, can only have reasoned that the 
Moore case was of "comparable seriousness" 
to the Hager case merely because the 
charge against Moore included in part 
violations of which Hager stood accused. 

The court thereby equated a greater 

offense to its lesser component offense 

without regard to the disparity in 
magnitude between the whole and the part. 
A fact-finding process that overlooks this 

crucial comparative step is clearly 
erroneous. Cf. Roberts v. Collins, 544 

F.2d 168 (4th Cir. 1976), cert. denied, 

430 U.S. 973 (1977).

(b) The Decision to Cite Moore to the
Civil Service Commission

After making the initial decision to 
take disciplinary action against Moore, 
Goodman faced a choice between personally



25a

ordering a punishment and citing Moore to 
the Civil Service Commission for review 
and possible punishment. Goodman referred 
the case to the Board, a course which, as 
the district court voted, "carried with it 
the possibility of significantly more 
severe sanctions than could be imposed by 
the Chief of Police." The plaintiff 
contended below that this decision to 
expose Moore to greater risk represented 
an act of racial discrimination by 
Goodman. The district court, finding a 
failure to refer the cases of white 
officers who committed violations similar 
to those committed by Moore, accepted that 
contention.

This conclusion finds no support in 
the record. Goodman accused Moore of four 
violations of four Civil Service regula­
tions :

(1) Rule No. 400-2: "Every 
member of the department shall 
obey the laws and ordinances



26a

which he is obligated to 
enforce," viz., Rule No. 
5Q0-7(v): ’’"receiving bribes 
and money or other valuable 
things."

(3) Rule No. 500-7(h): Goodman 
on four other occasions 
disciplined officers, all 
white, for "conduct unbecoming 
an officer" in conjunction with 
a related rules violation. In 
three of these four instances, 
Goodman referred the case to 
the Commission.

(4) General Order No. 4, 
Section V, Paragraph A: in 
addition to Moore, Goodman 
took disciplinary action 
against one other officer —  a 
white man -- for violation of 
this paragraph. He referred 
that case to the Commission.

This evidence demonstrates by an over­
whelming preponderance that the violations 
for which Goodman disciplined Moore were 
violations for which Goodman consistently 

cited white officers to the Civil Service 
Commission.

That consistency escaped notice below 
because the district court in its findings 
of fact attempted comparisons that ranged



27a

widely through the police department code
of conduct, reaching ad hoc judgments
about the reprehensibility of Moore's
violations relative to other officers' use
of profanity, abuse of alcohol, and

3
absence from work without leave. These
conclusions acknowledge no deference to
the police department classification of
violations, no application of the Solera v.

4
Helm criteria for comparing offenses, and

Because the district court reported its 
findings of fact in conclusory statements 
rather than detailed analyses of the 
evidence, we can only speculate about the 
specific incidents on which the court 
based its comparisons. We have reviewed 
all comparisons available from the 
evidence offered by the plaintiff, 
examples of which are given above.
We recognize that Solem v. Helm involved 
the procedurally diff e re n’t case of an 
Eighth Amendment challenge to a state 
criminal sentence. Although the standard 
of review may change with the transition 
from the criminal to the civil context, 
the considerations relevant in Solem 
remain relevant when comparing offenses in 
private disciplinary cases.



28a

in short, no basis whatsoever for the
asserted correspondence of conduct.
Without attempting to establish a single

process of comparison for the vast variety

of disciplinary situations, we may safely
say that in this case a principled
determination of "comparable seriousness"
required at least initial deference to the
system of offenses created by the police
department, an administrative agency of

5
the city of Charlotte. The departmental 
scheme may of course be disregarded if 

arbitrary or capricious. But in here 
judging "similarity" without the disci­
pline of that initial guidance and without

This 1 imited deference does not bring 
"comparable seriousness" to the level of 
"precise equivalence" that the Supreme 
Court has said to be unnecessary in Santa 
Fe, 427 U.S. at 283 n. 11. Conduct 
violative of a single police regulation 
may vary considerably in different cases. 
The other alleged violations of Rule No. 
400-2, for example, involved not bribery 
but larceny, drug distribution, and 
receiving stolen goods.



29a

the application of the Solem criteria, the 
fact-finding process strayed into clear 
error.

(c) The Decision Not to Withdraw the Case
from the Board____ ____________________

Patterson retracted his allegation of 
bribery on May 8, 1978, after the March 29 
citation by Goodman but before the June 21 
decision by the Commission. As the 
district court noted, Goodman retained the 
authority to withdraw the Moore case from 
the Commission docket in the period 
between the Patterson recantation and the 
Commission ruling. Plaintiff argued 
strenuously at trial that Goodman revealed 
an underlying racial motive by failing to 
exercise this authority. In support of 
this argument, plaintiff relied heavily on 
the disciplinary case of Sergeant T. C. 
Johnson, a white officer. Goodman cited 
Johnson to the Commission for violation of



30a

Rule No. 400-2 (failure to obey state 
law), and for the underlying violation of 
North Carolina larceny statutes. A jury 
acquitted Johnson of the state charges in 
a full criminal trial, after which Chief 
M. M. Vines, Goodman's successor in the 
Charlotte Police Department, withdrew 
Johnson's pending case from the Civil 
Service Commission and suspended him for 
fifteen days for conduct unbecoming an 
officer.

The Johnson incident, however, does 
not suggest disparate treatment of black 
officers and white officers. When 
criminal charges against Johnson dissolved 
with his acquittal, no unaffected charges 
remained on which the Commission could 
act. Chief Vines then instituted the 
charge of "conduct unbecoming an officer," 
a disciplinary sanction that the Chief of 
Police administered personally in all nine 
of the cases on the record -- involving



31a

both black and white officers —  in which 
it was the only basis for action. in 
contrast, Moore faced citation for three 

rules violations notwithstanding the 
bribery allegation. And, as noted above, 
these charges by themselves routinely 
mandated citation to the Civil Service 
Commission. As the decision of Chief 

Vines in the Johnson case and the decision 

of Chief Goodman in the Moore case thus 
arose in very different disciplinary 
contexts, the disparate treatment of 
Johnson and Moore cannot logically support 
a prima facie inference of racial discri- 
minat ion

(d) The Decision to Suspend and Demote
Moore _______

On June 21, 1978, the Charlotte Civil 
Service Board exonerated Moore on the 
bribery charge but found him guilty of the 
other three rules violations. By a two to



32a

one majority, the Board voted to suspend 
Moore without pay for eighty-five days and 
to demote him from the rank of sergeant to 
that of patrol officer. In reviewing this 
decision, the district court found as fact 
that white sergeants guilty of comparable 
violations had received less severe 
treatment from the Board than Moore had 
received. The district court concluded 
from this finding that Moore had raised a 
prima facie inference that the Board 
decision was motivated by racial animus.

For the reasons suggested by our 
discussion of the other contested deci­
sions, we cannot accept the premise of 
"similarity" implicit in the finding that 
comparable white offenders were treated 
more leniently by the Board. Inspected 
under a principled process of analogy, the 
record simply reveals no comparable white 
offenders. Cf. Corley v. Jackson Police
Department, 639 F.2d 1296, 1299 ( 5th Cir



33a

1981). The Board punished Moore for
violation of Rule No. 300-20 (attempt to
influence government officials for
personal gain), Rule No. 500-7(h) (conduct
unbecoming an officer), and General Order
4, Section V, Paragraph A (interference in
the trial process). According to the
evidence presented below, the Board has
found no other officer, white or black,
guilty of violating Rule No. 300-20 or

6
General Order 4, Section V, Paragraph A. 
The Board has apparently punished two 
white officers for violation of Rule No.

As indicated in section Ill(b), the 
Charlotte police chief has apparently 
cited no other officer for violation of 
Rule No. 300-20. Of the three officers 
mentioned for their citation under the 
most closely analogous rule, No. 300-31, 
the record includes the Board finding in 
only one case. That officer, found guilty 
of violating Rule No. 300-31 and Rule No. 
400-2 (failure to obey state law) was 
discharged from the force. The record 
does not indicate the Board disposition of 
the other incident involving an officer 
cited for violation of General Order 4, 
Section V, Paragraph A.



34a

5-00 — 7 ( h ) . It suspended J. L. Ruckart for 

twenty days without pay for a single 
violation of the rule, and it suspended B. 

W. Gaddy for ninety days for two viola­
tions of the rule in conjunction with 
related offenses involving conduct 

subversive of force discipline, making a 
false statement, and neglecting to route 

seized evidence through proper channels 
without delay. These cases, comparable 

only to a part of the basis for the 
punishment of Moore, do not indicate that 
the Board disposition of his case con­
flicted with its disposition of cases 

involving white officers. If anything, 
the ninety-day suspension ordered in the 
Gaddy incident -- which in the improper 
custody of evidence involved a loosely 
related problem of interference in the 
criminal process —  suggests a consistent 
concern by the Civil Service Board with



35a

limiting the influence of police officers 
in the post-arrest administration of 
justice.

Beyond the suspension, the district 
court found that "no white sergeant found 
guilty of a rules violation has ever been 
demoted by the Board." As an abstract 
proposition, this statement is correct. In 
fact, the record shows no other sergeant 
or higher officer, white or black, to have 
been demoted by the Board for any cause. 
But then, the record also shows no other 
person found guilty by the Board of 
abusing his position in an attempt to 
persuade government officials to forebear 
prosecution of a criminal trial. Given 
this fact that Moore's violations were as 
singular as his punishment, in light of 
the consistent pattern of disciplinary 
administration with respect to the rules 
classifications and in light of the 
reasonable proportionality of this



36a

sanction to the offenses admitted, an 

inference of racial intent based solely on 

the uniqueness of Moore's demotion is 

clearly erroneous.

IV

We recognize that a reviewing court 
need rarely address the sufficiency of a 
prima facie case after a full trial on the 

merits of a complaint. United States 
Postal Service Board of Governors v. 

Aikens, 460 U.S. 711, 714 (1983). The 
Aikens exhortation to proceed directly to 
the ultimate question of discrimination 
vel non does not, however, apply in this 

case for two reasons. First, Aikens 
emphasizes that "where the defendant has 

done everything that would be required of 
him if the plaintiff had properly made out 
a prima facie case, whether the plaintiff 
really did so is no longer relevant." Id.



37a

at 715. But here the defendant did not 
meet its burden of production. The 
evidence on which plaintiff seeks to raise 
an inference of racial discrimination is 
therefore not only relevant but crucial, 
for the force of that inference is the 
sole basis for the finding of intentional 
discrimination. Second, as the court 
observed in Burdette v. FMC Corporation, 
the Court of Appeals for this circuit has 
not adequately clarified the showing that 
a plaintiff need make to establish a prima 
facie case in a disciplinary Title VII 
action. 566 F.Supp. 808, 814-815 (S. D. 
W.Va. 1983). We do not intend here to 
replace that void with an exclusive 
mechanical model for handling these varied 
and delicate cases, but we do hope today 
to provide some guidance to the trial 
courts.

The essence of that guidance is that 
a conclusion that individuals have



38a

received discriminatory disparate treat­

ment may be supported only where the 
notion of comparability is informed by 

sound, articulated principles that will 
enable appellate courts to examine the 
fact-finding process. In this case, the 
district court found similarity among 
different incidents without the discipline 

of such reviewable principles. Because 
proper attention to these axes of compari­

son dispels any suggestion of racial 
animus in the challenged police decisions 
and because the plaintiff offered no other 

evidence, either direct or indirect, that 
even hinted at an improper motive on the 
part of the defendant, we must reject the 
inference of racial discrimination drawn 

by the district court as clearly erro­
neous .

REVERSED



39a

[PILED: July 29f 1983]

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION 
C-C-82-495-M

JACK K. MOORE, )
)Plaintiff,)
) FINDINGS OF FACT,

- V S -  ) CONCLUSIONS OF
) LAW AND ORDER CITY OF CHARLOTTE, )

NORTH CAROLINA, )
)Defendant.)

Louis L. Lesesne, Jr., Gillespie & 
Lesesne, 980 Johnston Building, Charlotte, 
North Carolina 28281, counsel for plain­
tiff.

F. Douglas Canty, Assistant City 
Attorney, Charlotte City Hall, 600 East 
Trade Street, Charlotte, North Carolina 
28202, counsel for defendants.

Before James b . McMillan, District Judge



40a

This case was tried without a jury in 

Charlotte on March 29 and 30, 1983. 

Having reviewed the trial transcript 
and exhibits and having considered all 
of the evidence and arguments of 

counsel, the court makes the following 
findings of fact and conclusions of law:

FINDINGS OF FACT

1. On August 25, 1982, plaintiff 
Jack K. Moore filed this suit against 
defendant, the City of Charlotte, and 

against the Charlotte Police Department. 
[By stipulation of January 19, 1983, the 
Charlotte Police Department was dismissed 

from the action.] Plaintiff alleged 
that defendant had discriminated 
against him on the basis of race in 
violation of Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. §2000e



41a

et seq., the Fourteenth Amendment 
to the United States Constitution, 

and 42 U.S.C. §§1981 and 1983.
2. Plaintiff is a black citizen of 

the United States and a resident of 

Charlotte, Mecklenburg County, North 
Carolina. The defendant, City of 

Charlotte, is a North Carolina municipal 
corporation.

3. Plaintiff was first employed by 
defendant approximately eighteen years 

ago. He served as a patrolman in the 
Charlotte Police Department until February 
1973, at which time he was promoted to the 
position of sergeant.

4. On March 29, 1978, then Chief of 
Police J. C. Goodman suspended plaintiff 
without pay and cited him to the Charlotte 
Civil Service Commission ("the Board") 
for violation of the Civil Service Rules 
and Regulations. Chief Goodman alleged 
that plaintiff had conspired to receive a



42a

bribe of $450.00 from Eddie Winfield 
Drakeford in return for arranging to 
driving charge against Drakeford dropped. 

The citation further alleged, in three 
additional counts, that plaintiff had 
improperly approached officers R. E. 

Cureton and D. L. Grose and asked them to 
attempt to get the charge against 

Drakeford reduced or dismissed. Plain­
tiff's Exhibit 3, Defendant's Exhibit 17.

5. The only evidence the Police 
Department had implicating plaintiff in a 
bribery conspiracy was an unsworn state­
ment given by Buddy Patterson to Captain 

W. H. Stroud on December 16, 1977. 
Defendant's Exhibit 5. On May 8, 1978, 
under oath and in open court, Buddy 
Patterson admitted that his statement to 
Captain Stroud implicating Sergeant Moore 
in a bribery conspiracy was a lie. 
Plaintiff's Exhibit 8.



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45a

obtaining favorable treatment on his DUI 
charge. The Board ordered that plaintiff 
be demoted from the rank of sergeant to 
patrolman and that his suspension without 
pay from March 29 through June 21, 
1978 ( 85 days), be made effective. 
Plaintiff's Exhibit 4.

9. There is no evidence that any 
white officer has ever been convicted and 
punished by the Board for rules violations 
similar to those committed by plaintiff. 
(As previously found, white officers 
alleged to have committed such violations 
have not been cited to the Board or 
disciplined at all.) However, a number 
of white police sergeants have been found 
guilty by the Board of violations of 
severity comparable to those committed 
by plaintiff, but have received much 
milder punishment than that imposed on



46a

plaintiff. No white sergeant found guilty 
of a rules violation has ever been demoted 
by the Board.

10. Defendant has not articulated 
any explanation for the difference in 
severity of the punishment imposed on 
plaintiff by the Board and that imposed 
on white sergeants found to have violated 
the Civil Service Rules. [Defendant 
contends, rather, that it cannot be held 
liable for any racial discrimination 
committed by the Board. See infra p. 7, 
Conclusions of Law, 114.]

11. On the basis of the foregoing 
findings that plaintiff was prosecuted and 
disciplined differently by defendant than 
were similarly situated whites and that 
defendant failed credibly to articulate a 
legitimate, non-discriminatory reason 
for this disparate treatment, the court



47a

finds that defendant intentionally 

discriminated against plaintiff on the 
basis o f  his race.

CONCLUSIONS OF LAW

1. The court has jurisdiction over 
this matter pursuant to 28 U.S.C. §1343 

and 42 U.S.C. §2000e-5. The fact that 
plaintiff's notice of right to sue was 
issued by the Equal Employment Opportunity 
Commission (EEOC) rather than by the 
United States Attorney General, as 
apparently required by 42 U.S.C. §2000e- 
5(f)(1), does not, as defendant contends, 
deprive the court of jurisdiction over 

plaintiff's Title VII claim. Plain­
tiff complied with the procedural obliga­
tions imposed on him by the statute and 
was entitled to a "right to sue" notice; 
defendant does not claim that it was in 
any way prejudiced by the alleged devia­



tion from statutorily prescribed 
procedures. The EEOC issued the notice 
pursuant to its own regulations, which 
provide in pertinent part that:

- 48a -

In all cases where the 
respondent is a government, 
govermental agency or a 
political subdivision, the 
Commission will issue the 
notice of right to sue when 
there has been a dismissal of 
the charge. In all other cases 
where the respondent is a 
government, governmental agency 
or political subdivision, the 
Attorney General will issue 
the notice of right to sue, 
including the following cases: 
( 1 ) when there has been a 
finding of reasonable cause by 
the. Commission, there has a 
failure of conciliation, and 
the Attorney General has 
decided not to file a civil 
action, and (2) where a 
charging party has requested a 
notice of right to sue pursuant 
to Section 1601.28(a)(1) or 
(2 ) .

29 C.F.R. §1601.28(d). [Plaintiff's charge 
was dismissed by the EEOC.] Regardless of 
whether this regulation comports with 
§ 2000e-5(f )(1), plaintiff cannot be



49a

faulted or penalized for any error the 
EEOC or the Attorney General may have made 

in interpreting and implementing the 
statute. Cf. , Perdue v. Roy Stone 

Transfer Corp., 690 F .2d 1091 (4th Cir. 
1982) ("right to sue" letter not prerequi­
site to jurisdiction where EEOC refuses to 
issue letter).

2. Defendant is an employer and 
plaintiff is an employee within the 

meaning of 42 U.S.C. §2000e(b) & (f).

3. Plaintiff proved by a prepon­
derance of the evidence that he was 

discriminated against by defendant on the 
basis of race. Defendant may not escape 

liability for the discriminatory disci­
pline of one of its employees by virtue of 
the fact that its disciplinary process 
consists of a series of independent 
decisions by various actors. The court 
has specifically found that plaintiff was 
discriminated against at two stages of



50a

that process -- in the decision to go 
forward with his prosecution and in the 
punishment imposed. But the most telling 
fact is the bottom line: a black 
employee of defendant was demoted and 
suspended for 85 days while similarly 
situated whites either received much 
lighter discipline or went unpunished.

4. Nor can defendant absolve itself 
of liability because it was the Civil 
Service Board rather than the Council 
which carried out the discriminatory 
treatment of plaintiff. The Board, whose 
members are appointed by the City Council, 
is vested under the City s charter with 
the authority to discipline a certain 
class of the City's employees (members of 
the police and fire departments charged 
with serious rules infractions). In other 
words, one of the City's integral func­
tions as an employer has been in part 
delegated to the Board. It is irrelevant



51a

that no other City body or agent, such as 
the City Council, the City Manager, or the 

police chief has the authority to reverse 

or modify the Board's decisions. When the 
Board acts, it acts for the City, and 

the City is therefore liable for the
Board 1s unlawful discriminat ion . Cf. ,
Owens v. Rush, 636 F .2d 283 (10th Cir.
1980) (county sheriff who made
independ ent employment dec is ions was
"agent" of the county for Title VII
purposes)•

5. Plaint if:f is entit led to an
award of costs and reasonable attorn ey ' s
fees.

ORDER

IT IS ORDERED that the lawyers meet 
and exchange information bearing upon the 
relief to which plaintiff is entitled 
based upon the above findings and conclu-



sions, and that they advise the court by 

August 15, 1983, whether they can agree
upon a final judgment.

This day of July, 1983.

JAMES B. MCMILLAN" ‘ 
United States District Judge



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177