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Busby v. City of Tulsa

United States District Court, N.D. Oklahoma

January 25, 2018

WALTER E. BUSBY, JR., Plaintiff,
v.
CITY OF TULSA, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         At the Pretrial Conference in this matter, the plaintiff, Walter E. Busby, Jr., notified the Court that he was only seeking equitable relief on his claims under Title VII of the Civil Rights Act of 1964, and he requested a non-jury trial before the Court.[1] The defendant, City of Tulsa, did not object. The Court accordingly conducted a bench trial at which six witnesses testified: Walter Evans; Chief of Police Charles Jordan; plaintiff Walter E. Busby, Jr.; Paul Fields; Deputy Chief Dennis Larsen; and Karen Ford. The Court admitted into evidence Plaintiff's Exhibits (PX) 2, 5, 6, 11, 12, 13, 14, 15, 18, 24, 25, 26, 32, 37, 38, 45, and 55, Defendant's Exhibits (DX) 23, 25, 27, 33, 35, 39, 41, 42, 43, 44, 45, 46, 47, 48, 91, 92, 93, 94, 95, 96, 97, 98, 116, and 128, and Joint Exhibit 29. Pursuant to Fed.R.Civ.P. 52(a), and upon consideration of the evidence admitted at trial, the Court makes the following findings of fact, by a preponderance of the evidence, and enters the following conclusions of law.

         I. Findings of Fact

         Background

         The plaintiff, Walter E. Busby, Jr., is an African American man who has been employed by the Tulsa Police Department (TPD) since 1981. He progressed through several positions over 35 years. He was promoted to sergeant in 1990 and to lieutenant in 1996. Later, the lieutenant title was changed to captain, with a change in rank title and duties. From 1996, Busby requested to work daytime assignments, and he was assigned to the second shift, which is also known as the day shift. In April 2008, he was transferred to the TPD's Mingo Valley Division, and he was assigned to the day shift. At the time of Busby's transfer to the Mingo Valley Division, Walter Evans, also an African American officer, was the Major over that division.

         Busby and Evans had known each other for years, they were amicable, and they had both been members of the Black Officers' Coalition, which is a fraternal organization of, and support group for, black officers. In January, 2010, Evans ordered Busby to march in the Martin Luther King, Jr. Day Parade with the TPD group that would be marching. Busby made it very clear that he did not want to participate. Ultimately, Evans gave Busby a direct order: “If you are working that day, you will participate and march with the department.” (Tr. at 244:15-22; see also Id. at 245:17-19; PX 13, 14, 15). That was the genesis of the disputes at the center of this litigation.

         The Order to Participate in the Parade

         Busby claims that the order that he participate with the TPD procession in the parade was based on his race. The City of Tulsa disputes that Busby was ordered to march based on his race. Having heard all of the evidence and considered the demeanor and credibility of the witnesses, the Court finds by a preponderance of the evidence that Busby was ordered to march in the parade, and was denied holiday leave in order to force him to march, based on his race. Busby was the only African American Captain under Evans in the Mingo Valley Division and was the only TPD Captain who was ordered to march in the parade on January 18, 2010. As will be discussed further below, the finding that Busby was ordered to participate based on his race is fully supported by the evidence admitted at trial, including the testimony of Busby and Evans, as well as Evans's own writings at the time immediately before and after the parade.

         Busby had long been on the parade citizen organizing committee, and he had at times marched in the parade. He had never marched in the parade as a member of the TPD, and he did not want to march with the TPD in the parade, because he did not think that the TPD had made sufficient progress in areas regarding race relations. (Tr. at 241). On January 13, 2010, Evans called Busby to Evans's office, and Evans indicated that he was “ashamed and embarrassed about the lack of participation of blacks in TPD-sponsored activities, particularly like the parade” and informed Busby that Evans would like to see more participation and would like Busby to participate in the parade. (Tr. 242). Ultimately, Evans more forcefully instructed Busby that, if he was working, he would participate in the parade. (Tr. 243). Busby explained to Evans the reasons he did not want to participate in the parade, which were rebuffed by Evans. Busby then clarified, “Is that an order?” and Evans responded, “Yes, it's an order. If you are working that day, you will participate and march with the department.” (Tr. 244). Race was expressly discussed during that meeting. (Tr. 244-245; see also PX 18).

         On January 14, 2010, Busby requested permission to take leave during the time of the parade. Evans responded, “Just give me a slip, ” referring to a leave request in writing. (Tr. 47; see also Tr. 72-73). Busby turned in a written request. (PX 11). Evans subsequently wrote “DENIED” on the request and then signed it. (Tr. 73). Evans also wrote a memo to Busby, dated January 15, 2010, stating, “After careful consideration, I have decided to deny your request. You will report to work on January 18, 2010, as scheduled and one of your assignments for that day will be to participate as a representative of MVD staff at the MLK parade.” (PX 13). After receiving the memo, Busby wrote to Evans indicating that he was “respectfully bringing to [Evans's] attention that [the] order to participate in the parade is illegal [because] [Evans's] stated reason for [Busby's] participation was based on [Busby's] race and as such it is illegal.” (PX 14).

         The same day, Evans sent a memo to Busby. (PX 15). Evans characterized the memo as his “final response” on the issue. (Id.). Evans disputed Busby's assertion that he was directed to participate in the parade based on his race. (Id.). However, Evans admitted that he “stated that [he] was embarrassed that few African American officers participate in Department-sponsored ceremonies, such as the Memorial Service, the MLK Parade, and the annual Awards Banquet.” (Id.). Evans's memo also stated, “The fact that we both share the same race as Dr. King and that the parade is held in the African American community is consequential.” (Id.). At trial, Evans asserted that the use of “consequential” was a “typo, ” and that it should have read “coincidental.” (Tr. 52-57). He testified that he knew of the “typo” the day he wrote the memo, but he did nothing to correct the record until after Busby had asserted a claim for racial discrimination. (Tr. 57). However, it is clear from the context of the memo exchanges, and Evans's admission that the directive to Busby to march in the parade was made during discussions regarding African American officers' lack of participation in the parade, that Busby's race was consequential to Evans's order, rather than “coincidental” to it.

         Under protest, Busby complied with the directive and participated in the parade on January 18. (PX 24; Tr. 250-251). The next day, Busby reiterated his assertion to Evans that Busby had been treated differently than white Captains and that he believed that Evans's order was illegally based on Busby's race. (PX 18). On March 30, 2010, Busby wrote to TPD Chief Chuck Jordan, alleging that the work environment had become increasingly hostile to Busby following the parade. (PX 24). Evans provided a memo to Chief Jordan in response to Busby's memo. (PX 25). Evans acknowledged referencing wanting black officers to have higher rates of participation in the parade and other TPD events at the time of ordering Busby to march, but he contended that he “did not assign [Busby] to the parade because he was an African American.” (PX 25).

         Although other Captains participated in the parade, the evidence at trial supported Busby's assertion that he was the only Captain who was ordered to participate. Two Captains volunteered to march in the parade. (See PX 15 at 2; PX 25 at 5). One of the four captains under Major Evans's command - who is white - was not ordered to march in the parade and was granted holiday leave, although such leave was denied to Busby when he asked for it. Evans testified that he was unaware of any captain other than Captain Busby being denied holiday leave. (Tr. 71-72; see also Tr. 256).

         Retaliation

         Notwithstanding his participation, soon after the parade, Busby began to encounter adverse consequences, which Busby asserts were retaliation for his complaints about being ordered to participate in the parade based upon his race. Based on the evidence, the Court finds that Evans took actions in retaliation against Busby based upon Busby's protected activity of complaining about racial discrimination.

         Evans testified that he took no actions against Busby in retaliation for his opposition to being ordered to march in the parade based on his race or for his complaint of unlawful racial discrimination. However, Captain Busby's complaints of racial discrimination were prominently identified in the most negative ratings in Major Evans's 2010 evaluation of Busby's performance. For example, Busby was rated as “Need[ing] Improvement” under “Conformance with rules, policies and instructions, ” and “Relationships with Others, ” based in part on the following, written by Evans:

In January of 2010, I assigned Captain Busby to march in the police procession during the Martin Luther King Parade. Captain Busby objected to marching in the procession because (as he stated) he did not want to “stand with them”. He so much objected to attending, that I was forced to “order” him to march. He reported to the parade, as directed, but he alienated himself from others by separating himself from others during the assembly, and by marching about 20 feet behind the police procession. This was noticed by other staff in attendance.

(PX 32 at 6-8). Evans also rated Busby as “Inadequate” as a supervisor, based in part on the parade:

In January of 2010 Captain Busby objected to participating in the Martin Luther King Parade because “he did not want to ‘put on a façade of unity' or ‘march with them' (referring to officers who opposed the [Black Officers Coalition] lawsuit). When I refused to excuse him from the assignment, he crafted a memorandum that accused me of racism, and implied that legal action would follow if I did not reconsider.

(Id.; see also PX 24 [Busby's March 30, 2010 memo to Chief Jordan regarding Evans's repeated references to the parade as a basis for denigrating Busby's performance]).[2] Busby requests that the Court order the defendant to purge the 2010 evaluation from his personnel record.

         Evidence also points to Evans moving Busby to a different shift in retaliation for Busby's opposition. In February, 2010, Chief Jordan indicated that he would be creating a fourth shift, with hours from 4 p.m. to 12:00 a.m. (Tr. 85-86, 92). At trial, Evans testified that, at the time that Chief Jordan made the announcement in February, Evans decided that he would move Captain Busby from the second shift (the day shift) to the new fourth shift. (Tr. 85-86, 119-120). Upon all of the evidence and the credibility of the witnesses, the Court finds that Evans's decision was in retaliation for Busby's allegations of discrimination. Evans denied that he made that decision out of anger or that he did so to retaliate against Busby. (Tr. 86). However, Evans acknowledged that, at the time he decided to move Busby to fourth shift, Evans felt “hurt and disappointment” because of Busby's claim of racial discrimination:

Q. We'll get into your decision making. But when you made the decision to send Captain Busby to fourth shift, you were angry at him for having charged you with racial discrimination in assigning ...

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