                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                 No. 92-2205



S.W. STEVERSON, JR.,
                                                    Plaintiff-Appellee,
                                                    Cross-Appellant,

                                       versus

LEON GOLDSTEIN, ET AL.,
                                                    Defendants-Appellants.

LEON GOLDSTEIN, JOHNNY ISBELL and
JOHNNY KLEVENHAGEN,

                                                    Defendants,
                                                    Cross-Appellees.




           Appeals from the United States District Court
                 for the Southern District of Texas

                               (June 15, 1994)


Before HIGGINBOTHAM and WIENER, Circuit Judges, KAUFMAN,* District
Judge.

HIGGINBOTHAM, Circuit Judge:

     A   jury     concluded    that     the     Sheriff   and   Civil    Services

Commission   of    Harris     County    discriminated      against      Shelby   W.

Steverson on the basis of race, and that the Sheriff retaliated

against Steverson for activity protected by the First Amendment.

The district court found for Steverson on a parallel Title VII

claim and entered judgment against the County based on its own

     *
        District Judge of the District of Maryland, sitting by
designation.
findings and the jury's verdict.            Steverson argues on a cross-

appeal that judgment should also have been entered against the

Sheriff and others in their individual capacities.            We AFFIRM.

                                      I.

     Shelby W. Steverson, an African American, has been employed as

a Harris County Deputy Sheriff since 1979.         During the evening of

February 27 and the early morning of February 28, 1988, while

serving as a private security guard at the U. W. Watkins' Country

Club, Steverson became involved in a word fight with another

officer, Sergeant Mark Walker.

     Sergeant Walker has a history of using racial slurs.               He has

referred to African Americans in roll calls, for example, as "God

damn niggers."1     He also has used racial epithets to refer to

members of the Harris County Sheriff's Department.                Although the

targets of these insults reported the incidents, the Department

took no disciplinary action.

     On the night of February 27, 1988, Sergeant Walker had been

called by Steverson's fellow security guards in response to an

attempted burglary near the Watkins' Country Club.           Walker arrived

and entered the club.       According to the district court, "Once

inside the Club, Walker verbally attacked Steverson in a racial

manner   without   cause   and   in   the   presence   of   the    night   club

customers.   Steverson advised Walker that Steverson would report

Walker's improper decorum. Racial tensions grew." Walker left the


     1
        When asked whether he considered the term offensive, he
responded that, in context, it was not.

                                      2
club and its owner followed him.                 The owner objected to Walker's

treatment      of    Steverson.          Steverson      intervened.       Walker     and

Steverson exchanged angry words.                  The situation became heated

because Walker was white while Steverson, the club owner, and most

of the patrons of the club were black.                   Witnesses testified that

violence threatened to ensue but in the end the parties went their

separate ways in peace.

      The     next       day   Steverson    reported     the   incident.       Johnny

Klevenhagen, the sheriff of Harris County, declined to process

Steverson's complaint.            When Steverson submitted the complaint to

the Internal Affairs Division, he was told to resolve the issue

informally.        Steverson nevertheless pursued the matter.               After the

Department assessed the incident, Steverson was given a three-day

suspension followed by a ninety-day probationary period.                     Sergeant

Walker received a written reprimand.

      Steverson appealed this result to Sheriff Klevenhagen, but to

no   avail.         Steverson     then   asked    the    Harris    County   Sheriff's

Department Civil Service Commission to review the sentence. Before

the Commission heard the appeal, Steverson joined as a named

plaintiff     in     a    class   action   suit    accusing       the   Department    of

discriminating on the basis of race.                    After hearing Steverson's

appeal, the Commission increased Steverson's sentence to include

seven more days of suspension.                   In several hundred cases the

Commission had heard in the past, it had both decreased and

affirmed but had never increased a sentence.




                                            3
       Steverson attributes his discriminatory treatment to race and

his political activities. These activities included filing a class

action    Title   VII   suit   against    the   Harris    County     Sheriff's

Department, and founding and participating in an organization known

as the African American Sheriff's Deputies League.                  The League

opposed the election of Klevenhagen to the office of Sheriff of the

County, and Steverson publicly endorsed a competing candidate, J.C.

Mosier, for the position.      Steverson spoke on the radio in favor of

Mosier and attended a meeting with Mosier at which Klevenhagen was

also present.     Five days after Steverson spoke on the radio, he

received an assignment requiring him to work undesirable hours.

Steverson's new shift began at 6:00 pm and ended at 2:00 am, making

it impossible for him to continue his private employment as a

security guard. No other member of the Sheriff's Department had to

work these hours.

       The district court found as a matter of law that the Civil

Service Commission violated Steverson's due process and equal

protection rights by augmenting his sentence and, "out of an

abundance of caution," made findings of fact.            The court submitted

to the jury Steverson's claims under 42 U.S.C. §§ 1981 and 1983 of

discrimination on the basis of race and of retaliation for his

Title VII lawsuit and his political activities.               The jury found

that Klevenhagen discriminated against Steverson on the basis of

race   and   retaliated   against   him    on   the   basis    of    political

activities, that race played a part in the Commission's decision to

augment Steverson's sanction, and that Sheriff Klevenhagen had a


                                     4
policy of discriminating against African Americans.      But it also

found that the policy was not a moving force in the violation of

Steverson's constitutional rights.       The jury awarded Steverson

compensation in the amount of $200,655.

                                II.

     The County2 contests the jury's award of damages as founded on

erroneous legal reasoning and as supported by inadequate evidence.

The district court's conclusions of law and the jury's findings of

fact provide various independent bases for affirming the judgment.

We will affirm the judgment if any of these bases enjoys an

adequate support in fact and law.3    Because the County did not move

for a directed verdict on its own behalf or on behalf of Sheriff

Klevenhagen, we will affirm if any evidence supports the jury's

verdict.4 Finally, we will avoid the conclusion that the jury's




     2
        We will refer to the defendants collectively as the
County, except where we must distinguish among them.
     3
        See Olney Sav. & Loan Ass'n v. Trinity Banc Sav. Ass'n,
885 F.2d 266, 271 (5th Cir. 1989) (noting that affirmance is
appropriate "when the reviewing court can be reasonably certain
that the jury did not base its verdict on an unsound theory")
(citations and internal quotation marks omitted).
     4
        Bunch v. Walter, 673 F.2d 127, 130-31 (5th Cir. 1982)
(citation and internal quotation marks omitted) (allowing
affirmance of jury verdict on any evidence where party failed to
move for directed verdict). Counsel for the County did move for
a directed verdict in regard to several defendants in their
individual capacities, but the record does not indicate a motion
for a directed verdict on behalf of Sheriff Klevenhagen or the
County. Steverson asserts that the County did not move for a
directed verdict, and the County does not claim otherwise.

                                 5
findings conflict with one another, if the facts of the case

permit.5

                                     III.

     The County first argues on appeal that the district court

erred in its conclusion that the Civil Service Commission violated

Steverson's rights to due process and equal protection.               The court

based    this   conclusion   on    the   language     of    the   Harris   County

Sheriff's Department Civil Service Regulations and the manner in

which     the   Commission     implemented      those      regulations.      The

regulations     empowered    the   Commission    to     "modify"   disciplinary

actions in response to an appeal by an employee.                      The court

interpreted the regulations as not allowing the Commission to

augment a disciplinary action.               It also noted that Steverson

received no notice that an appeal could result in an increased

sentence, and that Steverson's was the first and only case among

several    hundred   appeals    in   which    the   Commission      increased   a

sentence. We need not assess the County's arguments that the court

erred in its analysis because the jury verdict provides adequate

alternative grounds for affirmance.

     The jury found that race played a part in the Commission's

treatment of Steverson.6       The County contests the jury's finding of

     5
        See Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir.
1973)("The Seventh Amendment requires that if there is a view of
the case which makes the jury's answers consistent, the court
must adopt that view and enter judgment accordingly."). See also
Nance v. Gulf Oil Corp., 817 F.2d 1176, 1178 (5th Cir. 1987).
     6
        The County does not argue on appeal that the jury failed
to find that racial discrimination was a sufficiently strong
motive to satisfy 42 U.S.C. § 1983. We therefore do not address

                                         6
racial discrimination only on the grounds of inadequate evidence.

Our inquiry is limited to whether there is any evidence to support

the jury's verdict under 42 U.S.C. § 1983.          There is.   The

Commission took an unprecedented step in increasing, rather than

decreasing or leaving intact, Steverson's punishment. The original

sanction of Steverson stemmed from a racial conflict and, the jury

concluded, race played a part in the Sheriff's and then the

Commission's decision to affirm it.    Steverson can recover for the

harm he suffered because of the Commission's actions.    We need not

decide more.

     The County also argues that the district court erred by

applying retroactively the 1991 Amendments to the Civil Rights Act,

and by allowing Steverson to proceed under 42 U.S.C. §§ 1981 and

1983 on his claim of retaliation for his Title VII class action

suit.    We need not address these assertions because, regardless of

their merit, the jury's findings require affirmance.7   Klevenhagen

acknowledged that he was aware that Steverson backed Klevenhagen's

opponent, J.C. Mosier, in the race for Sheriff of Harris County.

Klevenhagen was present at a meeting that Steverson attended in


the issue.
     7
        But see Landgraf v. USI Film Products, 114 S. Ct. 1483
(1994) (holding that 1991 Civil Rights Act jury trial and
compensatory damages provisions do not apply retroactively); Irby
v. Sullivan, 737 F.2d 1418, 1429 (5th Cir. 1984) (holding that 42
U.S.C. § 1983 does not provide claim based on retaliation against
party for suit under Title VII, but that 42 U.S.C. § 1981 does);
Carter v. South Cent. Bell, 912 F.2d 832, 840-41 (5th Cir. 1990),
cert. denied, 111 S.Ct. 2916 (1991) (interpreting Patterson v.
McLean Credit Union, 491 U.S. 164, 179-80 (1989) to foreclose
claim under 42 U.S.C. § 1981 for retaliation in response to suit
under Title VII).

                                  7
support of Mosier.           Five days after Steverson spoke on a local

radio show on behalf of Mosier, Steverson received an undesirable

work       assignment.       Steverson    testified    that     Klevenhagen       was

responsible for the assignment. There was some evidence to support

the jury's finding that Klevenhagen retaliated against Steverson

for political activity.             This finding together with the jury's

determination that racial animus was a motive for the Commission's

and Sheriff Klevenhagen's actions support the jury's verdict.

       The County next contends that the district court erred in

holding it liable for Klevenhagen's actions.8                  The County argues

that Klevenhagen lacked final policymaking authority and that the

punishment      he   meted    out   to   Steverson,    based    on   race   and    in

retaliation for Steverson's First Amendment activities, cannot

result in its liability.            The County concludes that Klevenhagen's

"actions cannot be imputed to the County because he is not the

final decision maker and because of the Commission's subsequent

actions in reviewing the discipline."9

       The jury found that an unconstitutional consideration informed

the County's decision to suspend Steverson for a total of ten days.

We refuse to parse this decision into affirmance of the three-day

suspension        that       Steverson        originally   received         on     an


       8
        The County does not contest its liability for the
Commission's actions.
       9
        The focus of the County's appeal on this point is
unclear. Because the County refers to the Commission's review of
the sheriff's actions, we interpret the County as objecting to
liability for affirming the sanctions against Steverson that the
Sheriff's Department imposed.

                                          8
unconstitutional basis and that the County affirmed, and the

County's decision that a ten-day suspension was more appropriate.

Discretion    lay    with   the    County    whether    and   how     to   sanction

Steverson.    The jury and judge found that race played a part in the

County's exercise of its discretion.            The County is liable.

     Finally, the County seizes on the finding that the sheriff's

policy of disciplining black employees more severely than white

employees was not a moving force in the violation of Steverson's

constitutional rights.         The County objects that the district court

nevertheless found disparate treatment, relying in part on an

incident involving a white deputy who, after slapping a black

sergeant, received no sanction comparable to Steverson's.                       The

quick answer is that the jury's determination that racial animus

motivated    the    County's      suspension   of    Steverson      supports    the

judgment.     The district court prudently added its own findings.

Although ultimately such additional findings may prove to be

unnecessary, it is wise to make them when simultaneously trying

jury and nonjury claims.

                                       IV.

     Steverson argues by cross-appeal that the court should have

instructed    the    jury   to     consider    the     personal     liability    of

Klevenhagen    and    other      individuals    on     his    staff    for   their

discriminatory and retaliatory acts.           The district court held that

Klevenhagen and the other named defendants were not individually

liable because they were entitled to immunity as policymakers.                   At

oral argument, Steverson waived this claim, should we affirm the


                                        9
judgment against the County.10    We dismiss the cross-appeal on

Steverson's motion.

     AFFIRMED.




     10
        We note that a sheriff's decisions, even policy
decisions, are entitled only to qualified immunity. See, e.g.,
Colle v. Brazos County, 981 F.2d 237, 246 (5th Cir.1993). This
is so even where the sheriff's actions are attributable to a
county because the sheriff is considered a final policymaker.
Id. at 244.

                                 10
