good morning may it please the court my name is robbie had an hour long with mr ed howard to my right represent the appellant city of gadsden this case tried to a jury involves a claim of race discrimination by michael frazier a white male who submitted an application to the civil service board of the city of gadsden print in tree level police officer position frazier contends that police police chief crane also a white male removed his name from a list of candidates a hiring roster animus all of this was presented to the jury right yes sir so you want us to reverse what the jury decides yes or with one exception there was what there is one issue in the brief and i actually used my first issue to talk about with you today in its analysis under rule nineteen of necessary and indispensable parties this is it although it's the city is not the employer it's not the employer at all it is not the employer and in addition to that there was a necessary party that was not joined in this case the civil service board which is created by statute the members of that board are going to waive their i'm sorry toad in waive their no sir  my teens an issue that can be raised at any time it is but and there is a case that i started for that particular proposition campbell versus florida bar five thirty nine fed second thirteen  five which is the fifth circuit case but prior to nine hundred eighty one so you can wait all the way till now i'm sorry yes and wait all the way till now have motions for summary judgment judgment as a matter of law turn the city i mean i can just imagine what was going on in that police department and then wait until you get here could you braise it in oral argument or you would have to raise it at a brief i think in a brief ways are lined at a brief case specifically talks about this is she coming up for the first time on appeal so it should go back and then we just replace the board and we have another jury trial no sir argument is that because the civil service board is an indispensable party and the bell cannot be unrung the case should be dismissed and then sent tire to alternatively back for a new trial but our position is the case should be dismissed ok putting that aside  did include people had diversity had blacks and whites on this jury decide this issue right i can only assume so i did not participate in the trial can i ask you one question about rule nineteen before we go to the merits so i get it that you can raise this pretty much any time you want are you in a position to explain to us why this wasn't raised before because you know even if it is jurisdictional and you're within your rights to raise it now it still does kind of stink and so to use a technical term of art i'm just trying to figure out if you can tell us without breaching any confidences why it wasn't raised before i cannot ok i cannot purchase more than that even if the civil service board is or are spare why it would be hiring of the police chief it hires the police chief it directly oversees the police chief the police chief reports directly to civil service board and it disappoints a police chief that hires the hiring of the already that's correct  chief of police and all members of the police force so under federal law the issue is control and in that respect is the civil service or that was that issue here or not the city civil service board were as a party as  sight of alabama sheriffs inside of them are not county officials because they are act even though their jurisdiction is the county and their budget and their employees are paid by the county they are state official they are part of the executive branch of the state government therefore any they are separate entities and they have because they have the control over their employees even though they don't pay them the sheriffs or the employer the same situation here the civil service board is created by the state of alabama by statute and it is overseen by the state of alabama through the appointment of its members by the governor who is that is the board a party in every discrimination case involving the city  because it be it should be as it historically been one that i can't answer i do know this though that there are multitudes of decisions in alabama courts with regard to the civil service board and it being the defendant when ploys are continuing and police officers are contending that they were unfairly disciplined and are you are is the board i was about to sit you but as is the board indispensable even after the plaintiff here has sworn off his request for an statement i think i sort of understand that the board would be necessary for the logistics of getting him in stated to the to the force but still still why is the yes sir because there are two distinct issues under instance because that is wholly the civil service board's pervy in addition to that you look to what has happened with regard to the nine joined a party and whether or not its rights or its position  been challenge without its presence in the case and that is absolutely the situation here so under either prong of the inspection or of the rule nineteen analysis it's a necessary party then you get to indispensability here and  factors what prejudice was suffered by the non joined party can it be lessened depending on the relay fashioned is the judgment adequate without a joint or and where the plaintiff has any alternative brehm had any alternative remedies those point to the fact that this the civil service board is indispensable the freshers allegations unnecessarily challenge the civil service board's rule making and their authority and control over both crane the chief who made the alleged who had the alleged contend that dismissal is appropriate given that situation can you just sort of flesh that out for me i'm not sure i understand the bell ringing analogy that you're making so why is it exactly that the bill couldn't be young wrong and just do again with the warden if we send it back you're saying send it back secondly so you get to wait to sort of retroactively insert the board into the case but he is bound by his own decision not to sue the board in the first place that's our contention yes or in addition to on to the merits of the case there is no direct evidence of discrimination and i'm going to get through these very hurriedly so please bear with me crying during his interview according to mr frazier stated that he would but he promised to hire minorities over e whites however the transcript of that interview was actually on the record he did not say that he in fact stated that he would work on minority recruitment in order to get to direct evidence you have to basically infer that to recruit means to hire  may being asked to process the applications of three african american candidates this requires that the term process is synonymous with higher in an indication of the at least three african american sand of those three only one was recommended for hire therefore hire and process cannot be synonymous see my concern with all of this and i don't know if you're going to have all the time how long was a trial i think it was two days o fifty goes usually the rule fifty and the summary judgments are in favor of the employer and then they go up beside me after everything went to the jury and they found out about all the disputes of the prior  filing by the captain against the chief the whole while everything that happened then that police department where a kind of court of appeals said you know what it wasn't enough if i'm not mistaken many chubby brown so  black so that they can be given preference in the jury in title i mean there's more work to there's more to it and so you have to look at the evidence in a light most favorable to mr frazier so it's our position that that is not direct evidence then you go to ok was there some sufficient circumstantial evidence when you compare as mr frazier tried to do that the three these three same three african americans but excuse me not the same three it was must sandridge and montgomery he didn't have any ballot compared hers he had there were multiple issues with his application multiple issues with his application that disqualified him under from being a police officer so can i just ask you about that briefly show you over time and i'm sorry but so i will confess that when i read you were brief i too thought wow there are multiple issues that might disqualify this individual however when i read your opponent's brief and found that there were explanations for many of them none of which were included in your brief he seems not to be quite the monster that you had pain so i guess sort of where that where where we left at the end of that with with the explanations you know he took some change off of family members bedside tables but never out of it while he had a camera but when he realized it was stolen he returned it took a soft drink i think and he sort of didn't know if it was really against the rules but he felt inside about it none of that i don't know stoller roadsign i'm not going to say who hasn't stolen a road sign but still a road sign when he was seventeen it just didn't seem all that terrible once i read the other side of the story which i presume the jury well here's explain that from the jury you have to remember that chief crane was analyzing his application which is a very different said he saw the explanations presumably right i don't  because the chief of police is white and he was discriminating against white applicants but the testimony the jury heard was a week long it wasn't two days and i don't fault my co counsel for opposing also knowing that she didn't she didn't try the case with me at our did he did a fantastic i don't think it's a big deal because i think it's gotcha and i don't think title seven was meant to be a gotcha statute this point was never raised in response the you see george in the divine it's an answer in defense in iraq where he enters in their summary judgment motion which was  at the pretrial hearing with judge hopkins as a matter of fact we have to find out the city of gatson or his employer right yes or no i mean i think a total we find that under title so what's the evidence here that shows that the city no matter how many boards have decisions and committees they're always interviewing committees how do we find it's the employer who's liable under title seven burglary how do we find that that is the judge the enabling statute that set up the civil service board is alabama code forty five twenty eight dash forty two zero one and it's it states that that sh continue in their respective employment of the cities during good behavior efficiency and obedience to the statute itself contemplates the employees will be employed by the state city at the civil service or is not the employer and i think it i think you raise the point that it never got to the civil service or in this case chief crane disqualified my client and one thousand other white applicants from eros her so that he can cherry pick the three african americans he wanted to process and so can relief be provided by the where two or more look state or local government entities will be treated as a single employer under title seven and she cited the lies case the lies or society revere beach so the city lost that argument before just talk in circles shortly after much trial and didn't appeal that judgement and honestly by title seven itself which contemplates the employer is the only entity that held liable but when we look at that statute doesn't it say that the civil service board and not the city has legal authority over the police chief board would be the only party that incurs liability for the chiefs behavior judge a title seven didn't i understand your point is and i understand it's a novel argument cities make and this point late in the game but i do believe that title seven is meant to prohibit illegal employment practices and not a civil service board that oversees the chief but has no role with respect to the mr frazier he would have been employed by the city he would been paid by the city he would reported to the chief of police who is employed by the city and when we look at the alabama there's no way that my client could have even been before the civil service board cheap crane took him out of the equation before the civil service board even heard his name and didn't give him that shot and this can be the first title seven cases civil service board is something that applies to all cities in the state of alabama or just for this city judge that i confess i only looked within the city of guesses administrate of code so i don't know that answer has an alabamian i can represent that there are some there are some statutes that a plot lots of statutes that apply only t specific look alan so it's entirely possible against and has its own civil service board statute other cities may have theirs as well but so let me ask you a question while you're pausing so as to fashioning relief i think i heard earlier that back a short time later and had only check more three african american applicants he was operating under what he thought was a mandate from the civil service board to increase the diversity of the police department it's a noble goal it's a good goal that the police department needs to represent the community but it doesn't need to throw out the civil service board rules or title seven requirements in order to reach that goal after my client was disqualified the chief well let me back up after a cast mate objected to his instruction to cheat crane what about his mission because he removed kassam a from the process all together transferred to another division and began retaliating against her the evidence the jury heard about that which was fairly strong the next  seven months later the chief took another roster that my client didn't appear on the overstreet roster and skipped over three white applicants in order to process the reaction or hired three african americans in a row that were out of order he supposed to go one two three four off and i believe  affirmative action plan judge the fire department is under a consent decree and i would think that i would argue that that is also evidence that chief crane has some incentive to stay away from a consent decree as to the police department but i'm not aware of any affirmative action plan it was not before the jury but there is a consent decree with the fire department but not with the police department so it was not with his cranes purview if he saw all that african americans were under represented on the force to make efforts to increase their representation certainly i didn't have any problem with him saying during his interview process i'm going to make an effort to increase the minority representation or force the way he went about it though discriminated against white applicants  just the very first when i was a white female terror base she was number one of my clients roster after that he brought in an african american lateral hire named montgomery and then there was a passing reference in the transcript to the fact that he hired four white males after that after my government there were never identified there was never applications put in the record there was never any evidence to demonstrate who they were there was a list that was created as a sort of a summary but in it from that list it was  your client's explanations for his past misdeeds were on the application i thought they were i was going to that point judge thank you he did include a significant amount of narrative information on his application kept him a testified  testified or maybe it was later testified that they sometimes call atkins to flesh out those answers a little bit more can you explain this to me once you put us on this my client was so concerned about a polygraph exam that he was going to take further in the process that he just listed everything on his application stealing from a relative when he was a child taking drinks from a c v s where he worked a moving a street sign and things of that nature and he explained every one of them what the jury found i think in my opinion persuasive was the chief came in with very three very specific reasons he disqualified my client from this list of twenty four but he couldn't testify to any of the others and we argued i think successfully did the judge that the chief crane came up with these post hoc in relation to the e charge and in relation to the claims against him we never claimed that chief crane was a racist or that this was racism but it was absolutely disparate treatment and he was motivated solely by race just one other thing that i believe piers mentioning if there's the subjectivity in the arbitrariness of the chief did fall fishing process he spent a great deal of time on the stand all day for an early in the day five talking about his process of why he disqualified my  testified he never put it in writing he never reduced anything to writing about any of the applicants he disqualified and he didn't have a set way of doing it that he liked it that way because you know honestly he admitted this will stand to my surprise that he liked it that way because it gave more flexibility more and there was there was evidence that he skipped straight down in a way he wanted out i lost my train of thought there just i apologise one of the organ we made that i think was important to the jury was that each of c position statement was inconsistent with their argument trial the city argued that the lateral hiring process for mr montgomery was different and more abbreviated then harney left rookie applicants and there was never any discussion within the e e o c position statement by the city about my rather and we put on our evidence of six witnesses the city cross examine those witnesses or directed those witnesses and then didn't call any additional witnesses at the end of their kicks i keep going back to the case that i couldn't get away from i believe in my brief orange or my research is the lockheed martin case it defies logic for us to argue now that the jury was supposed to believe chief crane when he said even though i put race on that roster i didn't consider race when i disqualified those white applicants it defies logic and i think the lockheed martin decision should be followed in this case and allowing the jury verdict to stand and we have to understand that the jury deliberated judge judge hopkins had already turned down summary judgment to the city and the jury found in favor my client with a relatively modest that's an excellent question i believe he could have gone to the civil service board and found some way to him in the rules he was supposed to operate under jerry gladden a person personnel director said he never trained the chief in what the civil service board rules were that said that an applicant stays on that roster for two years and then when you get there the person is ranked highest because of the written in the world what test scores is picked first that she could have said well let's do that but let's do it more on a two to one ratio to see if we can improve crease the number african americans and will will advance to african americans for every white applicant there are ways they could have done that in an open forum within the civil service board and put that before the city but the way this chief went about it was covert and he silenced anyone that objected kept him a objected told me couldn't do it he got rid of he moved her to a different apartment and the jury heard that the cities think radial times talking about how by she was or how she might not like this chief but she was very convincing her testimony she said when she didn't get picked for the chief job she walked up to chief and said i hope you're the best chief the city's ever had hired under chief princeton year was white and he tries to take issue with her because she was also female this is not a gender case this was a race case there was no basis for four claim about her being female she w however the e e o c response was simply a response to allegations by mr frazier that were faults number one that he was the first on the roster which again was not true terabits was and secondly behave been skipped over for an african american male mr montgomery well the issue with mr montgomery was that he was a lateral hire who was already a post started fired he was hired in a completely different roster and different process then was mr frazier there's also been  about jumping over in suffice it to say when it's all said and done the first person hired under she cranks to in your white wife were hired at a three to one ratio over african americans during during cheap crans year and his team your and his hiring and recommendations of the civil service board did not change the racial makeup of the police force against him presumably some version of that was your or your colleagues closing argument that you're right i'm sorry some version of the argument that you just made surely must have been the closing argument to the jury something like i'm sure it was i haven't read the closing argument recently but i haven't either that all but i just have to assume that somehow i assume so but i'm not sure if in addition to that there are there were these things compared to us that have been pointed to and especially the mentioning of the three african american males that were supposedly processed however and i would like to read it reiterate to the court that only one of those was recommended for hire only one of those three was recommended for hire and not a they compared named had the quality as the chief of police at the time of the first application by mr montgomery and there's no evidence that he knew about it those are issues that were i guess just discovered their discovery  sandridge had not the quantity quantity or the quality of background issues as did mr frazier and obviously as we know from this court precedent that the quality and quantity of issues must be nearly identical for these to be simply not enough circumstantial evidence to sustain the jury's verdict here i mean i ask you just one last question if i could go to wilson when they get the police officers get their checks is it the city of analogy with the sheriff in the state of alabama his employees are paid by the county and the check state county commission at whatever county but they're his employees for the purposes of title seven or whatever other employment action there could be so while you may look at that issue it is