                                    Walter CRAPP, Plaintiff-Appellee,
                                                      v.

                             CITY OF MIAMI BEACH, Defendant-Appellant,

                                         Nos. 99-13492, 00-10643.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Feb. 21, 2001.
Appeals from the United States District Court for the Southern District of Florida. (No. 96-00479-CV-FAM),
Federico A. Moreno, Judge.
Before WILSON, KRAVITCH and COX, Circuit Judges.

        KRAVITCH, Circuit Judge:
        The appeal of this Title VII race discrimination case presents two main issues: whether the district
court erred by treating the suspension of a police officer's certification made retroactive to the date of his

termination as after-acquired evidence under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,

115 S.Ct. 879, 130 L.Ed.2d 852 (1995), and whether decisions by state administrative agencies unreviewed
by state courts are entitled to preclusive effect in Title VII cases. We answer both in the negative.

                                   I. Background and Procedural History

        Walter Crapp, who is black, worked as a police officer for the City from September 10, 1986 until
his termination on November 26, 1996.1 In September 1996, following an argument with his supervisor,
Crapp filed a complaint with Internal Affairs alleging that his supervisor had battered him.2 In the course of




    1
     Crapp's employment with the police department was continuous, except for a period from December
17, 1991 to February 2, 1992.
    2
      On the morning of September 4, 1996, Crapp arrived at work without his weapon. According to
Crapp, after roll call he obtained permission from Sgt. Zeifman to return home to retrieve his weapon.
While Crapp was away, Sgt. Weider attempted to reach him on his radio, but was unable to do so. When
he returned, Crapp explained that he had not heard the radio request because his radio battery had
malfunctioned. Crapp then went to the office of Sgt. Putz, his supervisor, who had summoned him during
his absence. The two began a heated discussion regarding Crapp's whereabouts that morning,
culminating in Sgt. Putz formally ordering Crapp to account for his whereabouts. According to Crapp,
after he requested that Sgt. Putz reduce his order to writing, Sgt. Putz struck Crapp across the hand and
forearm with his hand or a bundle of papers.
its investigation, Internal Affairs came to the conclusion that Crapp had lied about the incident.3 Richard

Barreto, the City's Chief of Police, recommended that Crapp be fired.               Chief Barreto then held a
pre-determination hearing during which Crapp was given an opportunity to present evidence why he should

not be terminated. After investigating Crapp's evidence, Chief Barreto again concluded that Crapp was lying,

and subsequently fired him. Crapp appealed his termination to the City's Personnel Board. Counsel

represented Crapp at the hearing and called witnesses on his behalf. The Personnel Board upheld Chief
Barreto's decision.

          Crapp filed suit against the City in federal court, alleging that his termination was racially motivated

in violation of Title VII, 42 U.S.C. §§ 2000e et seq. (1997).4 Crapp claimed that similarly situated

non-minority police officers were not terminated for similar disciplinary problems. The jury found for Crapp
and awarded him $150,000 in compensatory damages. In a Final Order dated July 28, 1999, the district court
entered judgment in favor of Crapp and awarded him backpay and reinstatement. The court stayed

reinstatement, however, pending a decision by the Florida Department of Law Enforcement ("FDLE")
regarding whether Crapp would be decertified as a police officer.5 The district court subsequently denied the
City's Renewed Motion for Judgment as a Matter of Law, and the City filed its first notice of appeal (No. 99-

13492).
          The FDLE suspended Crapp's certification for two years effective from the date of his termination.

The City then moved for relief pursuant to Rule 60(b), asking the court to set aside the judgment or order a
new trial. Although the district court denied the motion, it vacated the award of backpay and reinstatement.

The court reasoned that under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879,


    3
     The Internal Affairs investigation concluded that Crapp had not informed his supervisor that he
needed to return home to retrieve his weapon, had been insubordinate to Sgt. Putz during the meeting, and
had exaggerated the incident in his complaint to Internal Affairs.
    4
    Crapp also brought a hostile work environment claim under Title VII and a claim under the
Americans with Disabilities Act, 42 U.S.C. §§ 1201, et seq. (1997). The district court granted summary
judgment to the City on those claims, and Crapp has not appealed them.
    5
     Pursuant to Fla. Stat. § 093.1395(5), the City notified the FDLE of the results of its Internal Affairs
investigation. After an administrative hearing before an Administrative Law Judge ("ALJ") at which
Crapp was represented by counsel, the ALJ concluded that Crapp had lied in his complaint to Internal
Affairs and during the subsequent investigation. The ALJ further recommended that Crapp be decertified
for conduct unbecoming an officer. On November 19, 1999, following another hearing to review the
ALJ's report and recommendation, the Criminal Justice Standards and Training Commission of the FDLE
unanimously accepted the ALJ's findings of fact and suspended Crapp's certification for two years,
effective from the date of his termination.
130 L.Ed.2d 852 (1995), Crapp was not entitled to backpay or reinstatement because he was no longer
certified to be a police officer. The court entered an Amended Final Judgment on January 25, 2000,6 pursuant
to which the City filed its second notice of appeal (No. 00-10643).7
                                                  II. Discussion

A.       The City's Rule 60(b) Motion

         We review the denial of a Rule 60(b) motion for abuse of discretion. See United States v. Certain

Real Property Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1318 (11th Cir.1997). The City argues that

because the FDLE made its suspension of Crapp retroactive to the date of Crapp's termination, Crapp cannot

establish a prima facie case of discrimination. We conclude that the district court properly accounted for

Crapp's suspension by amending the judgment to preclude backpay and reinstatement.
         The City argues that it is entitled to judgment in its favor or, in the alternative, a new trial, under two

provisions of Rule 60(b). Rule 60(b)(2) provides that a party may seek relief because of "newly discovered
evidence which by due diligence could not have been discovered in time to move for a new trial under Rule
59(b)." Under Rule 60(b)(6), a court may grant relief for "any other reason justifying relief from the

operation of judgment." "[R]elief under this clause is an extraordinary remedy which may be invoked only

upon a showing of exceptional circumstances." Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th

Cir.1984) (citations omitted).
         The City contends that the FDLE's retroactive suspension of Crapp's certification vitiated his ability

to make out a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). To establish a prima facie case of racial discrimination, a plaintiff must show that: "(1)

he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly
situated employees outside his classification more favorably; and (4) he was qualified to do the job."

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). The City argues that the FDLE's decision to


     6
    In a subsequent order dated February 9, 2000, the district court directed that the Amended Final
Judgment be entered nunc pro tunc to the date of the original judgment.
     7
      Along with its second notice of appeal, the City filed a Notice of Suggestion of Lack of Jurisdiction
regarding the first notice of appeal. The City argues that its first notice of appeal was premature because
there was no final judgment until the district court entered its Amended Final Judgment on January 25,
2000. Even if the first notice of appeal was premature, this court has jurisdiction over the entire case by
virtue of the second notice of Appeal and the order consolidating the two appeals. See United States v.
Olavarrieta, 812 F.2d 640, 642-643 (11th Cir.1987) (holding that a second notice of appeal filed after a
final judgment vested the court with jurisdiction over the entire underlying judgment.)
retroactively suspend Crapp's certification prevented Crapp from showing that he was qualified to be

employed as a police officer.

           Even assuming that the requirements of either Rule 60(b)(2) or 60(b)(6) have been met,8 we are

unpersuaded that the FDLE's decision affected Crapp's ability to establish a prima facie case of

discrimination. The burden shifting scheme articulated in McDonnell Douglas is designed to "bring the

litigants and the court expeditiously and fairly to the ultimate question [of discrimination]," and the prima

facie requirement "is not an onerous one." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). We have recognized that in termination cases, the question of

whether the plaintiff was qualified to do the job is not often at issue. "[I]n cases where a plaintiff has held

a position for a significant period of time, qualification for that position sufficient to satisfy the test of a prima

facie case can be inferred." Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495 n. 2 (11th

Cir.1987). Thus, "allegations of poor performance against plaintiffs discharged from long-held positions may

be properly considered ... when a court evaluates the pretextual nature of an employer's proffered

nondiscriminatory reasons for termination." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,

1360 (11th Cir.1999), cert. denied, --- U.S. ----, 120 S.Ct. 1962, 146 L.Ed.2d 793 (2000).

           In this case, the FDLE's decision to suspend Crapp's certification-even though made retroactive to

the date of his termination-does not prevent Crapp from establishing his prima facie case. Because the FDLE

did not make the decision to suspend Crapp's certification until after his termination, it cannot serve as a
legitimate, nondiscriminatory reason for Crapp's termination; nor does it change the fact that at the time of
the alleged discriminatory treatment, Crapp was certified to be police officer, and was therefore qualified for
his job.

           Furthermore, the FDLE's decision was only made retroactive to November 26, 1996-the effective date
of Crapp's termination-not October 11, 1996, when Chief Barreto decided to fire Crapp. Therefore, even

accepting the City's argument that the FDLE's determination should be given retroactive effect, the FDLE's

decision does not vitiate Crapp's prima facie case because Crapp was certified to be a police officer when

Chief Barreto made the decision to fire Crapp.



    8
      The parties dispute whether the FDLE's decision qualifies as "newly discovered evidence" under
60(b)(2) and whether the report is an "exceptional circumstance" under 60(b)(6). Because we conclude
that the FDLE's decision did not affect Crapp's ability to establish a prima facie case of discrimination,
we need not decide whether the FDLE decision satisfies the requirements of either 60(b)(2) or 60(b)(6).
         After learning of the FDLE's decision, the district court vacated its award of backpay and

reinstatement without vacating the compensatory damage award. In doing so, the court appropriately
recognized that the City could have fired Crapp for a lawful reason-lack of certification-on the same day that

it fired him for a discriminatory reason. We conclude that the district court properly took account of the

FDLE's decision as "after-acquired evidence" under McKennon v. Nashville Banner Publishing Co., 513 U.S.

352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995).

        In McKennon, the employer conceded that it had discriminated against the plaintiff, but argued that

its after-acquired evidence justified the termination. The Supreme Court rejected this argument, holding that

after-acquired evidence should not be used to determine liability because "[t]he employer could not have been
motivated by the knowledge it did not have and it cannot now claim that the employee was fired for the

nondiscriminatory reason." Id. at 360, 115 S.Ct. 879. Rather, the Court held that after-acquired evidence

should be used in fashioning the remedy: neither reinstatement nor frontpay generally is appropriate, and

backpay should be limited to the point when the employer discovered the after-acquired evidence. Id. at 361-

62, 115 S.Ct. 879.
        The City argues that it is inconsistent to deny Crapp backpay for a discriminatory termination and

yet award him compensatory damages for that termination. The district court's action, however, is consistent

with the treatment of after-acquired evidence under McKennon. The district court vacated its award of

backpay and reinstatement because the FDLE's decision precluded the City from retaining Crapp as a police

officer. The FDLE's decision does not, however, change the fact that the jury concluded that the City's
decision to fire Crapp was a racially motivated adverse employment action for which Crapp should be
compensated. The district court's Amended Final Judgment complies with the Supreme Court's statement in

McKennon that "[r]esolution of the [problem of after-acquired evidence] must give proper recognition to the

fact that [unlawful discrimination] has occurred which must be deterred and compensated without undue

infringement upon the employer's rights and prerogatives." Id. at 362, 115 S.Ct. 879. Denying Crapp any

damages in this case would neither compensate him for the discrimination he suffered nor deter the City from
future acts of discrimination.

B.      The Decision of the City's Personnel Board

         After his termination, Crapp appealed to the City's Personnel Board. Following a hearing at which
Crapp was represented by counsel, the Personnel Board found that Crapp had engaged in conduct
unbecoming an officer. The City argues that the district court erred by not instructing the jury on the

preclusive effect of the Personnel Board's findings. This court applies a deferential standard of review to a
trial court's jury instructions: If the instructions accurately reflect the law, the trial judge is given wide

discretion as to the style and wording of the instructions. See Eskra v. Provident Life & Accident Ins. Co.,

125 F.3d 1406, 1415 (11th Cir.1997).

        In Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999), this court held that a "state court's

decision upholding an administrative body's findings has preclusive effect in a subsequent federal court
proceeding if: (1) the courts of that state would be bound by the decision; and (2) the state proceedings that

produced the decision comported with the requirements of due process." Unlike this case, however,

Maniccia, dealt with the preclusive effect to be given state judicial proceedings. Id.

        In University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the

Supreme Court distinguished between claims under Title VII and claims under § 1983 in determining whether

unreviewed state administrative decisions should be given preclusive effect. In Elliott, a University of

Tennessee employee, fearing that he would be fired for misconduct, requested a hearing under the Tennessee

Uniform Administrative Procedures Act. Id. at 790, 106 S.Ct. 3220. Following an administrative hearing,

a university official acting as an ALJ concluded that the plaintiff had engaged in acts of misconduct and that

the charges against him were not racially motivated. Id. at 791, 106 S.Ct. 3220. Rather than seeking review

of this decision in the state courts, the plaintiff decided to pursue claims under Title VII and § 1983 in federal

district court. Id. at 792, 106 S.Ct. 3220. After noting that 28 U.S.C. § 1738, which requires federal courts

to give preclusive effect to decisions of state courts, does not apply to unreviewed state administrative

decisions, the Court considered whether general rules of preclusion applied to the plaintiff's claims. Id. at

794, 106 S.Ct. 3220.

        With respect to the § 1983 claims, the Court held that the state administrative agency's findings

should be given preclusive effect. Id. at 799, 106 S.Ct. 3220. The Court noted that "[w]e ... see no reason

to suppose that Congress, in enacting the Reconstruction civil rights statutes, wished to foreclose the

adaptation of traditional principles of preclusion to such subsequent developments as the burgeoning use of

administrative adjudication in the 20th century." Id. at 797, 106 S.Ct. 3220. Accordingly, the factual findings

of a state administrative agency must be given preclusive effect in § 1983 proceedings. Id. at 799, 106 S.Ct.

3220.
         The Court reached a different result, however, with respect to the plaintiff's Title VII claims. Title

VII requires the EEOC to give "substantial weight to final findings and orders made by State or local
authorities in proceedings commenced under State or local law." 42 U.S.C. § 2000e-5(b). The Court noted

that "it would make little sense for Congress to write such a provision if state agency findings were entitled

to preclusive effect in Title VII actions in federal court." Id. Therefore, the Court concluded that "Congress

did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims."

Id. at 796, 106 S.Ct. 3220.

         Applying Elliott, other circuits have held that unreviewed state agency decisions are not entitled to

any preclusive effect in Title VII cases. See Rao v. County of Fairfax, Va., 108 F.3d 42, 45 (4th Cir.1997);

Roth v. Koppers Indus., Inc., 993 F.2d 1058, 1060-63 (3d Cir.1993); McInnes v. California, 943 F.2d 1088,

1093-94 (9th Cir.1991); DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 114-15 (2d Cir.1987);

Duggan v. Board of Educ., 818 F.2d 1291, 1293-95 (7th Cir.1987); Abramson v. Council Bluffs Community

School Dist., 808 F.2d 1307, 1308-09 (8th Cir.1987). In McInnes, the Ninth Circuit explained "[t]he clear

teaching of Elliott is that in a Title VII action a prior state decision enjoys issue preclusive effect only if

rendered or reviewed by a court.... In contrast, unreviewed administrative determinations lack preclusive
effect in a subsequent Title VII action, regardless of any preclusive effect state law might accord to them."
943 F.2d at 1093-94. Accordingly, we conclude that the district court did not err by refusing to instruct the
jury that the Personnel Board's findings of fact should be given preclusive effect.
C.       Other Issues

         The City makes two final arguments. First, the City argues that the district court should have granted
its motion for judgment as a matter of law because Crapp had not shown that similarly situated non-minority

officers were treated differently. Second, the City argues that it was prejudiced by certain comments made

by Crapp's counsel. After a thorough review of the record, we conclude that these arguments are without
merit.

                                               III. Conclusion

         Based on the foregoing reasons, we AFFIRM the final judgment of the district court. In addition,
Appellee's motion for attorney's fees and costs on appeal is GRANTED as to entitlement, and that matter is

REMANDED to the district court for a determination of amount.

         AFFIRMED and REMANDED.
