                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 11, 2003
                          ____________________
                                                           Charles R. Fulbruge III
                               01-30742                            Clerk
                         ____________________

                    CHARLES ALBRIGHT, III; ET AL.,
                                                           Plaintiffs,

            MICHAEL GLASSER; STEPHEN DUNN; EARLE FRISARD,

                                                Plaintiffs-Appellants,
                                versus

                   THE CITY OF NEW ORLEANS; ET AL.,
                                                           Defendants,

     THE    CITY OF NEW ORLEANS; MARC H. MORIAL, Individually
      And    In His Official Capacity As Mayor Of The City Of
      New    Orleans; RICHARD PENNINGTON, Individually And In
     His    Official Capacity As Superintendent Of Police For
                        The City Of New Orleans,

                                           Defendants-Appellees.
        _________________________________________________

                       BARRY FLETCHER; ET AL.,
                                                           Plaintiffs,

            BARRY FLETCHER; STEPHEN DUNN; MICHAEL GLASSER;
                    EARL J. FRISARD; BRUCE LITTLE,

                                                Plaintiffs-Appellants,
                                versus

                   THE CITY OF NEW ORLEANS; ET AL.,

                                                           Defendants,

         THE CITY OF NEW ORLEANS; RICHARD J. PENNINGTON,
           Individually And In His Official Capacity As
      Superintendent Of Police For The City Of New Orleans;

                                                 Defendants-Appellees.


_________________________________________________________________
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                            (97-CV-2523)
_________________________________________________________________

Before SMITH and BARKSDALE, Circuit Judges, and DUPLANTIER,

District Judge1.

PER CURIAM:2

     Several New Orleans police officers contest the judgment,

after a bench trial, dismissing their race discrimination claims.

Primarily at issue is whether the district court clearly erred in

finding the City offered proper reasons for requesting that its

Civil    Service   Commission   not   extend   a   promotional    register.

AFFIRMED.

                                      I.

     The police department developed a promotional register for

prospective lieutenants which remained in effect from            May 1994 to

November 1998.     The register grouped promotion-candidates into six

bands, corresponding to their performance on an examination for

promotion to lieutenant, administered in 1992.         The test had been

developed in 1991.     This procedure was mandated by a 1987 consent

decree in Williams v. City of New Orleans, Civ. Action No. 73-629.



     1
          District Judge for the Eastern District of Louisiana,
sitting by designation.
     2
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                      2
The Williams decree required, together with the above-described

bands, the creation of supernumerary positions to be filled only by

black officers.    Those positions could be filled by black officers

from lower bands than the one being used, if no black officers were

in that band.     The consent decree also mandated that lieutenants

were to make up 4.9 percent of the force, and that the decree would

end upon the expiration of the second promotional register compiled

under it.

     The City’s Civil Service Commission (CSC) was in charge of

maintaining the register, which was to remain in effect for no less

than one year.     The CSC’s Director then had sole discretion to

continue the register’s use for another two years.    Any extension

beyond that total three years was a decision for the CSC.

     The second register compiled pursuant to the consent decree

was established in May 1994.     In March 1995, all 16 officers in

bands one through three were promoted to lieutenant, as well as six

officers in band four, five of whom were that band’s only black

officers.    Twenty-six white officers remained in band four.    In

order to fill available supernumerary positions, and because no

black officers remained in band four, black officers in band five

were promoted. Accordingly, aside from any supernumerary positions

that might become available, any officer promoted thereafter to

lieutenant under the register would have to be a white officer from

band four.


                                  3
      By May 1997, three years had passed since the second register

had been compiled.       Thus, it was for the CSC to determine whether

to extend its use.       The CSC extended the register for three months

— through August 1997.           That August, the City, through Police

Superintendent Pennington, requested that the CSC not further

extend the register, noting:          (1) the test from which the register

was   compiled    “was   based   on    performance      and   testing     criteria

formulated in late 1991”; (2) a new test, which would incorporate

progressive policing tactics, was “essential in the identification

of the future leadership of the department”; and (3) no need was

foreseen   to    “promote     additional     Lieutenants      in   the   immediate

future”.

      In anticipation of that request, the plaintiffs in this action

— five white New Orleans police sergeants in bands four and five

(Fletcher plaintiffs) — sued and requested a temporary restraining

order against the City’s stating its preference to the CSC about

the register’s extension.         Because the CSC extended the register

for six months, the action was dismissed as moot.

      That September, the City requested that the CSC reverse its

six-month-extension decision, referencing the City’s August letter

and asking the CSC to “move expeditiously to administer a new test

which would correctly reflect those dimensions [the Superintendent]

ha[d]   identified       as   critical       in   the   leadership       of   th[e]

department”.


                                         4
      That October, the City again requested reconsideration of the

CSC’s register-extension decision.        In so doing, Superintendent

Pennington again referenced the age and ineffectiveness of the

test:

              It is of great importance that the future
              leaders of the Department be chosen from those
              who   demonstrate  knowledge   and   abilities
              consistent with current policies, procedures
              and    strategies.      Testing    candidates,
              emphasizing the vital dimensions of integrity,
              accountability, and community policing is
              essential in the identification of those
              future leaders.

      Also that October, the City promoted two officers.        One was a

white band four sergeant; the other, a black band five sergeant

(supernumerary position).

      That November, the CSC decided to terminate the register,

retroactive to August.       The Fletcher plaintiffs again requested a

temporary restraining order against the termination, claiming it

violated 42 U.S.C. § 1983, LA. REV. STAT. § 23:1006 et seq. (unlawful

for employer to discriminate on basis of race), and LA. REV. STAT.

§   51:2231    et   seq.   (“safeguard[ing]”   individuals   from   racial

discrimination).      (The complaint was later amended to, inter alia,

claim the termination-request also violated Title VII of the Civil

Rights Act, the Equal Protection Clause, and the Williams consent

decree.)      The Fletcher plaintiffs alleged:    the City did not want

to promote whites to lieutenant; and the City knew it would have to

do so to comply with the consent decree unless the register was


                                     5
terminated, thereby ending the decree.                     A TRO was granted, to

remain in effect until the resolution of the Fletcher plaintiffs’

action.

      The Fletcher plaintiffs’ action was consolidated with three

others concerning the department’s claimed discriminatory policies.

In January 1999, on the basis of a time-bar, summary judgment was

awarded the City against the Fletcher plaintiffs’ discrimination

claims.      The   Fletcher    plaintiffs’             claims   based       on   asserted

violations of the consent decree were tried to the bench and

dismissed.

      The plaintiffs in the consolidated actions, including the

Fletcher plaintiffs, appealed.          This court, inter alia, affirmed

the dismissal of the Fletcher plaintiffs’ consent decree claims,

but reversed the time-bar ruling against their discrimination

claims.   Albright v. City of New Orleans, No. 99-30504 (5th Cir. 1

November 2000) (unpublished).

      On remand, a bench trial was held.                       Pursuant to detailed

findings of    fact   and     conclusions         of    law,    the   district      court

dismissed the Fletcher plaintiffs’ discrimination claims, finding

the   City   had   proper     reasons       for    requesting         the    register’s

termination.




                                        6
                                        II.

     The Fletcher plaintiffs challenge:              (1) the ruling that the

City had proper reasons for requesting the termination; and (2) the

exclusion of certain testimony.          (Although the decision adverse to

the Fletcher plaintiffs was rendered in a consolidated case and no

FED. R. CIV. P. 54(b) certification was entered, our court has

jurisdiction because the consolidation was not “clearly unlimited”

and the several actions could not have been brought as a single

action.     In re Transtexas Gas Corp. v. TransTexas Gas, 303 F.3d

571, 577-78 (5th Cir. 2002) (quoting Ringwald v. Harris, 675 F.2d

768, 771 (5th Cir. 1982)).)

                                        A.

     Conclusions of law are reviewed de novo.                   E.g., Randel v.

United States Department of Navy, 157 F.3d 392, 395 (5th Cir.

1998). More relevant to this appeal, findings of fact are reviewed

only for clear error.      E.g., Couch v. Cro-Marine Transport, Inc.,

44 F.3d 319, 327 (5th Cir. 1995).              A finding of fact is clearly

erroneous when, on review of the record, we are left “with the

definite and firm conviction that a mistake has been committed”.

Id. (citation omitted).

     The    crux   of   this   appeal    is    the   claimed    clear   error    in

crediting Superintendent Pennington’s testimony that he sought the

register-termination because the test upon which the register was

based     was   outdated   and    did        not   reflect     the   values     the

                                         7
Superintendent thought should be tested. Accordingly, primarily at

issue are findings of facts based on witnesses’ credibility.              For

such findings, Federal Rule of Civil Procedure 52(a) “demands even

greater deference to the trial court[] ... 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 in

what is said”.      Anderson v. Bessemer City, 470 U.S. 564, 575

(1985).    See also, United States v. Bentley-Smith, 2 F.3d 1368,

1377 (5th Cir. 1993).

       In a Title VII race discrimination action, a plaintiff must

present a prima facie case of discrimination. See, e.g., McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).            The City does not

contest    the   district   court’s       conclusion   that   the   Fletcher

plaintiffs did so.

       Once a prima facie case has been established, the defendant

must   present   legitimate,   non-discriminatory        reasons    for   the

employment action.    E.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 507 (1993).     Along this line, the Fletcher plaintiffs do not

contend the test’s obsolescence could not be a legitimate, non-

discriminatory reason for requesting the register’s termination.

       Finally, if the defendant presents such reasons, the burden

shifts back to the plaintiff to show those reasons are pretextual.

E.g., Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143

(2000). It is on this point that the Fletcher plaintiffs claim the

                                      8
district   court      clearly   erred     by     crediting   Superintendent

Pennington’s testimony.

     The district court understood the City’s termination-request

to be based on two considerations:         the need for a new test; and

not needing new lieutenants.         As for the latter, evidence showed

that the department needed new lieutenants.          For example, prior to

Superintendent Pennington’s writing the termination-request letters

to the CSC, the Chief Administrative Officer had written to the

Superintendent     concerning   15   lieutenant     vacancies.   (At   trial,

Superintendent Pennington did not recall that letter.) As also

noted, between the dates of the letters, two officers were promoted

to lieutenant; Superintendent Pennington testified the promotions

were made “because some people left [and the department] needed two

more lieutenants”.

     The   district    court    found:     the    evidence   “significantly

undermined [the City]’s assertion that they sought to terminate the

[register] because NOPD did not need additional lieutenants in

1997”; and, Superintendent Pennington’s October promotion of the

two officers “preclude[d] a finding that he believed there was

absolutely no need for additional lieutenants during the pertinent

time period”.

     The Fletcher plaintiffs seek mileage from the district court’s

rejection of this part of the City’s explanation.            They cite the

court’s statement that the explanation’s veracity was “impugn[ed]”


                                      9
and claim Superintendent Pennington testified “untruthfully” about

that explanation.        Accordingly, plaintiffs contend, Superintendent

Pennington’s “overall credibility” was diminished, including as it

related to other reasons for requesting the register-termination.

     It    is   apparent           from    Superintendent         Pennington’s       August,

September, and October 1997 letters to the CSC, however, that the

reason for the termination-request was the test’s obsolescence, not

the lack of need for new lieutenants.                          Indeed, only the August

letter referenced that lack.                    Moreover, even in that letter, the

reference served only to allay any fears the CSC might have had

about terminating the register based on Superintendent Pennington’s

stated reason that the test upon which the register was based was

too old.   Along this line, it should also be noted that the “need”

to   promote      the        two     lieutenants          in     October    arose     after

Superintendent Pennington’s three letters to the CSC and over two

months after he wrote the only letter describing not needing new

lieutenants.      In fact, the district court observed:                        “[I]t is a

disputed    issue       of    fact        as    to    whether     ...    [Superintendent]

Pennington      knew    about        the       shortage   of     lieutenants    and    non-

compliance      [with        the     consent          decree’s     4.9     percent    ratio

requirement] when he sought to have the register expire”.                            In sum,

the district court’s rejection of the City’s no-new-lieutenants-

needed contention sheds almost no light on the pretextual nature




                                                 10
vel non of the City’s main explanation for the termination-request:

the test’s obsolescence.

     As for this explanation, the district court held: “Plaintiffs

have failed to carry their burden of showing that the proffered

reason was false[,] much less a pretext for discrimination”.                The

court noted that the test had been administered in 1992 and any

officer who had not taken it would not be eligible for promotion.

It ruled:   “Given ... [Superintendent] Pennington’s goal to effect

change   and   improvement     within     [the    police   department],     the

[d]efendants’ reluctance to allow the roster to run the full five

years permitted under [CSC] regulations ... is hardly proof of a

nefarious motive”.

     Primarily   on   the    basis   of   three    items   of   evidence,   the

Fletcher plaintiffs assert that the district court clearly erred in

its ruling. First, Superintendent Pennington testified that he did

not review the 1992 test to determine whether it tested for the

progressive techniques he desired.           Second, when Superintendent

Pennington requested the register-termination, no new test was in

place from which a new register could be created.                 Finally, in

1996, one Fletcher plaintiff, Sergeant Glasser, passed a captain’s

examination, which met Superintendent Pennington’s criteria for

testing progressive techniques.            Yet Superintendent Pennington

promoted a band five black officer to lieutenant in the October

1997 promotions, even though he had never taken such a test.


                                     11
      Superintendent Pennington’s not having personally reviewed the

1992 test is not critical. He testified that the national standard

was   a     two-year   list.        Superintendent     Pennington      became

Superintendent in October 1994.        It was reasonable for him to seek

to impress his own values upon promotional registers and keep the

department more current by using a new test in place of one

developed six years, and administered five years, earlier.              As he

testified: “There was [sic] so many factors involved and I thought

there would be a greater opportunity for the department to really

get the new candidates for ... lieutenant to prepare for an

examination based on [current policies, procedures, and strategies,

such as accountability and community policing]”. (Emphasis added.)

      Along this line, although a new test had not been completed,

the Superintendent could have reasonably wanted to avoid making any

large-scale promotions on the basis of what he considered to be an

outdated test.     As a result, there being no new test from which to

promote lieutenants does not show clear error.               (Moreover, the

record conflicts as to how long it would take to create and

administer a new test.         The City’s Personnel Director testified

that he     told   Superintendent   Pennington   it    would    take   in   the

“ballpark” of six to nine months to have a new test, and it might

take “up to nine months” to administer one.)

      The   Fletcher    plaintiffs’    contention     that     Superintendent

Pennington disregarded the captain’s test in making the October


                                      12
1997 promotions also fails to show clear error.                  First, as the

district court noted, Sergeant Glasser was one of “many individuals

who comprised the candidates on the roster”. More importantly, the

black officer with whom plaintiffs contrast Sergeant Glasser was

promoted to a supernumerary position.

      In the light of our deferential standard of review, especially

for credibility determinations made by the district court, we

cannot say it committed clear error in crediting Superintendent

Pennington’s testimony that he had a legitimate, non-dicriminatory

reason for seeking register-termination.               Along this line, the

October promotions of two sergeants to lieutenant strengthen,

instead of diminish, Superintendent Pennington’s credibility.                  One

of   those   promoted   was    a   white    officer.     Had   Superintendent

Pennington been motivated by racial animus to the point that he

would disregard the department’s need for lieutenants, he would

hardly be expected to promote that officer. Moreover, and as noted

by   the   district   court,   the    CSC,    an   independent    body,    found

convincing    Superintendent       Pennington’s    reason   relating      to   the

test’s obsolescence.     Finally, it, not the Superintendent or the

City, made the ultimate register-termination decision.

                                       B.

      The Fletcher plaintiffs challenge the district court’s not

admitting part of Deputy Chief Hewlitt’s testimony.              The ruling is

reviewed for abuse of discretion.           E.g., Celestine v. Petroleos de


                                       13
Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001).                    Evidentiary

rulings are also subject to harmless error analysis.                 E.g., Green

v. Administrator of the Tulane Educational Fund, 284 F.3d 642, 660

(5th Cir. 2002) (affirmed unless substantial right affected (citing

United States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.), cert.

denied, 522 U.S. 902 (1997))).         See FED. R. EVID. 103.

     Deputy   Chief     Hewlitt      testified    that:        Superintendent

Pennington’s deputies had encouraged the promotion of black band-

four officers in order to maximize the benefit of the supernumerary

positions; she voiced some objection regarding that process to the

Superintendent;   and    she   had     spoken    with   the    Superintendent

immediately before a black band-four officer was promoted in 1995.

The district court would not permit Deputy Chief Hewlitt, however,

to testify about the content of that 1995 conversation, ruling it

was irrelevant or, alternatively, unfairly prejudicial.                A proffer

was made of that conversation.

     For her proffer, Deputy Chief Hewlitt testified:                 after the

1995 promotion of the black band-four officer, she spoke with the

Superintendent    to    express       concerns    about       that    officer’s

disciplinary record; the 1995 promotion form would have indicated

a candidate’s race to the Superintendent; and the Superintendent

“[w]ould have understood the concern about the race of those who

were not being given fair consideration [in 1995]”.




                                      14
     Assuming arguendo that the ruling was erroneous,                   it was

harmless.    First, the Fletcher plaintiffs’ claims relating to the

1995 promotions were time-barred.           Moreover, Deputy Chief Hewlitt

testified that she did not mention the racial motivation of the

deputies when she spoke with the Superintendent.                  Accordingly,

Deputy Chief Hewlitt’s testimony about her discussion with the

Superintendent     offers     no   basis    to    call   into    question    the

Superintendent’s racial motivation vel non in 1997 for requesting

the register’s termination.

     At most, Deputy Chief Hewlitt’s excluded testimony would raise

an issue concerning Superintendent Pennington’s credibility when he

testified that he did not remember the conversation with the Deputy

Chief about the 1995 promotions.             As the district court noted

during trial, however, that inconsistency was established by Deputy

Chief Hewlitt’s admitted testimony.

                                     III.

     For    the   foregoing    reasons,     the   judgment      concerning   the

Fletcher plaintiffs is

                                                                   AFFIRMED.




                                      15
