           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 23, 2008

                                     No. 07-60640                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JOE L JOHNSON,

                                                  Plaintiff - Appellant,
v.

CITY OF COLUMBUS MISSISSIPPI,

                                                  Defendant - Appellee.



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                   1:05-CV-234


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Joe L. Johnson, a 24-year veteran of the Columbus, Mississippi Police
Department, brought this case for racial discrimination against the City of
Columbus, Mississippi, alleging that the City passed over him for a promotion
to the position of Chief of Police because of his race (black). After a jury trial, the
district court entered a judgment in favor of the City. Johnson appeals.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-60640

      Instead of Johnson, the City appointed J.D. Sanders to the position of
Chief. Sanders was a white, outside applicant. In deciding who to hire as Chief
of Police, the City Council divided along racial lines. The City Council consisted
of six members. Three members were white. Three members were black. The
three white City Council members voted for Sanders. The three black City
Council members voted for Johnson. Because of the 3-3 tie vote, the Mayor, who
was white, cast the decisive tie-breaking vote. The Mayor voted for Sanders.
      The Mayor testified that, among other reasons, he voted for Sanders based
on his interpretation of an external report commissioned by the City, which
recommended retaining an outsider for the position of Chief to restore confidence
in the police department. Johnson concedes that the Mayor’s proffered reasons
were legitimate, non-discriminatory reasons for hiring Sanders. Johnson does
not argue that the Mayor’s tie-breaking vote was racially biased.
      Rather, Johnson argues that there was evidence that the vote of at least
one white councilman was tainted by a racially discriminatory motive. Because
of the City Council’s 3-3 tie vote, every vote mattered. Thus, on Johnson’s theory
of the case, race was a motivating factor in the City’s failure to promote him to
Chief if even one councilman acted out of a racially discriminatory motive.
Johnson tried his case to a jury, which returned a verdict finding that the City
of Columbus’s failure to promote Johnson to Chief of Police was not motivated
by race.
      Johnson raises two issues on appeal. First, Johnson argues that the
district court erred in refusing to instruct the jury that the City is liable for
discrimination by its City Council. Second, Johnson argues that the district
court erred in refusing to admit evidence concerning Sanders’ performance as
Chief of Police, evidence relating to events that occurred after the decision to
hire Sanders had already been made.



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                                    No. 07-60640

      We first address Johnson’s challenge to the jury instructions. We review
properly preserved challenges to jury instructions for abuse of discretion. United
States v. Finley, 477 F.3d 250, 261 (5th Cir. 2007); United States v. Simkanin,
420 F.3d 397, 410 (5th Cir. 2005). A district court abuses its discretion by
refusing to include a particular instruction as part of the charge only if the
instruction: “(1) is substantively correct; (2) is not substantially covered in the
charge given to the jury; and (3) concerns an important point in the trial so that
the failure to give it seriously impairs the defendant’s ability to present
effectively a particular defense.” Simkanin, 420 F.3d at 410.
      Johnson argues that the district court abused its discretion by refusing to
include the following instruction as part of the charge (still in context):
      Court instructs the jury that the city of Columbus acts through its
      agents. City councilmen are agents of the city of Columbus and the
      city of Columbus is responsible for the acts and votes of its city
      councilmen. If a city councilman voted not to hire plaintiff because
      of his race and if that racially discriminatory vote was a proximate
      contributing cause of plaintiff’s not being caused [i.e., hired] then
      the city of Columbus is liable even if there were other causes of
      plaintiff’s not being hired.
The defendant responds that this instruction is substantively incorrect because
the individual councilmen were not acting as “agents” of the municipality, for
liability purposes, when they cast their votes for Chief of Police. Johnson, in his
reply brief, concedes that the term “agency” might be a “technical error.”
However, he argues that this defect does not undercut the thrust of his objection
to the charge: the district court failed adequately to instruct the jury that the
City is liable for the official acts of its City Council. Specifically, piecing together
Johnson’s somewhat disjointed argument, Johnson’s primary argument appears
to be that the district court’s instructions failed to make clear that the racially
discriminatory motive of a single councilman could establish that race was a
motivating factor in the City’s decision.


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                                         No. 07-60640

       The district court’s charge, specifically Instructions No. 3 and 4,1
substantially addressed the issues raised by Johnson and adequately instructed
the jury on what to do if the jury concluded that some, but not all, of the relevant
decision makers were motivated by race. The charge identified that Johnson
was challenging the City’s decision based on the vote by both the Columbus City
Council and the Mayor. The charge further instructed the jury that Johnson
need only prove that race was a motivating factor in the City’s decision, even if
other factors also motivated the City. The charge also instructed the jury on
Johnson’s theory of the case that race was a motivating factor because the white
councilmen would not vote for a black man for the position of Chief. Collectively,
these instructions adequately instructed the jury that it could find that race
motivated the City’s failure to promote Johnson to Chief of Police based on the
racially discriminatory votes of individual councilmen. Therefore, after a careful


       1
           Instruction No. 3 provided in relevant part:
              Plaintiff Joe Johnson claims that the City of Columbus racially
       discriminated against him because he is African-American when he was not
       chosen to be the Columbus Police Chief in a November 4, 2003 vote by the
       Columbus City Council and Mayor. . . .
               To prove unlawful discrimination, Mr. Johnson must prove by a
       preponderance of the evidence that the City of Columbus did not hire him
       because of his race. Mr. Johnson does not have to prove that unlawful
       discrimination was the only reason that the City of Columbus did not hire him.
       Mr. Johnson need only prove that race was a motivating factor in the
       defendant’s decision, even though other factors may also have motivated the
       defendant. If you disbelieve the reasons the City of Columbus has given for its
       decision, you may infer that the defendant did not hire Mr. Johnson because of
       his race. However, if you find that the City of Columbus would have, more
       likely than not, made the same employment decision to hire Mr. Johnson, you
       should find for the defendant.
Instruction No. 4 provided in part that “Plaintiff’s theory of the case is that the white
councilmen would not vote for a black man for the Police Chief position and that the
defendant’s stated reasons for hiring Mr. Sanders were a pretext to cover up their racial
motives.” Instruction No. 4 also reemphasized that “[i]f plaintiff proves that his race was a
motivating factor in the City’s decision to hire Mr. Sanders, then you must find for the plaintiff.
If the plaintiff does not prove that race was a motivating factor in the decision to hire Mr.
Sanders, then you must find for the defendant.”

                                                4
                                  No. 07-60640

review of the record and the instructions given in this case, we conclude that the
district court did not abuse its discretion in rejecting Johnson’s proffered
instruction.
      Johnson next argues that the district court erred in excluding evidence of
Sanders’ performance after Sanders was hired as Chief of Police. The district
court concluded that evidence concerning Sanders’ performance after the
allegedly discriminatory decision had already been made was not relevant. We
review the district court’s evidentiary rulings for an abuse of discretion. Triple
Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir. 2007). We find no
reversible error in the district court’s decision to exclude this evidence.
      AFFIRMED.




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