1

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

05-30517

ARMAND BOURDAIS, ET AL 

Plaintiffs,

MICHAEL P CALAMARI, JR; FREDERICK H KNECHT, JR; KEITH A

LABARRIERE; GLEN J LAWSON; SHAWN D MURPHY; GARY E SMILEY;

FRANCIS A WILLIAMS II; CHRISTOPHER D WREN

Plaintiffs-Appellees,

ARMAND BOURDAIS; DAVID H ASHBURN; GLEN A BAGERT; DOUGLAS P

BALSER; ALLEN J BLANCHARD; THOMAS J BURNS, JR; SCOTT A

CHAPPUIS; LEONARD R DAIGLE; MICHAEL D DONALDSON; JAMES A

FINCHER; RONALD G FIORELLO; GERALD L FORSTER; TIMOTHY G

GLEASON; MARK J GRUNBERG; ROBERT A HENDERSON; RICHARD K

HIRSTIUS; RICHARD S JOHNSON; CHARLES N JONAU, JR; JOSEPH J

JURISICH; THEODORE A KREGER, JR; VICTOR J LAVACA; STEVEN D

LAMBERT; PHIL S LOCICERO; EDWARD M LOMBARD; DUDLEY R MAJOR;

RICHARD B McCURLEY; DAVID F NICK; PETER M PANQUERNE; FRANK A

PELICANO, JR; ADAM W POMMIER; KELLY J PORCHE; ERIK J

SCHNEIDER; RONALD J SCHWANKHART, JR; MELVIN L SEEGER; GERALD

R SEIDELL; HANSON J SMITH; MICHAEL P SMITH; DAVID K

SPILBERGER; PAUL A TEMPLET, JR; DONALD J THOMPSON; PETER S

ULI, JR; JAMES F VANCE; GLEN D WALLACE; WILLIAM J YOUNG

Plaintiffs-Appellees-Cross-Appellants,

v.

NEW ORLEANS CITY

Defendant-Appellant-Cross-Appellee,

MARC H MORIAL, Individually and in His Official Capacity as

Mayor of the City of New Orleans; J MICHAEL DOYLE, JR,

Individually and in His Official Capacity as Director of

Personnel for the New Orleans Department of City Civil

Services; NEW ORLEANS CITY CIVIL SERVICE COMMISSION; WARREN E

MCDANIELS, Individually and in His Official Capacity as

Superintendent of the New Orleans Fire Department; SIDNEY J

BARTHELEMY; WILLIAM J McCROSSEN; NEW ORLEANS FIREFIGHTERS

ASSOCIATION
2

Defendants-Cross-Appellees 

Appeals from the United States District Court for the

Eastern District of Louisiana

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal arises out of a lawsuit filed in 1999 by a number

of Caucasians who, in 1991, applied to be fire recruits with the

New Orleans Fire Department (NOFD). New Orleans (the City) used

race as a factor in its fire recruit hiring policy, and the

plaintiffs alleged that this impermissibly caused their hiring

delays. 

I. BACKGROUND

The City administers a written test to applicants seeking to

become firefighters for the NOFD. The plaintiffs all took this

aptitude test in 1991 and their scores were recorded on the 1991

Register. If an applicant received a passing score on the test, he

was then required to pass further screening (agility test, drug

screening, medical background check, etc.) before being placed on

a list of recruits eligible for hire.

The City hired seven classes of recruits from the 1991

Register and accompanying eligibility lists over the next few

years. Class One was hired March 22, 1992. None of the plaintiffs

in this suit were hired in Class One. Each plaintiff was hired at
1 Lalla, et al. v. City of New Orleans, et al., Civ. A. 96-2640;

Courtade, et al. v. City of New Orleans, et al., Civ. A. 96-2658.

3

some point between September 8, 1992 (Class Two) and August 21,

1995 (Class Seven).

While NOFD previously hired applicants from the eligibility

lists top down from the highest score on the test, the 1991

applicants were subjected to a policy whereby NOFD would hire one

African American for every Caucasian. This resulted in African

Americans getting hired before Caucasians who had higher test

scores. 

The City’s liability for this hiring policy was established

through two separate lawsuits—Lalla and Courtade1—instituted in

1996 and concerning the same discriminatory practice. In those

cases, unlike the plaintiffs here, none of the applicants were

hired into any of the seven classes of recruits from the 1991

Register. On May 13, 1998, the Lalla plaintiffs deposed former

Fire Superintendent William J. McCrossen who testified that the

1991 applicants were hired using a racial quota system. On March

5, 1999, the Lalla plaintiffs won their motion for summary judgment

establishing that the hiring policy violated their Fourteenth

Amendment right to equal protection. 

Two months later, on May 10, 1999, plaintiffs brought this

suit to recover back pay and lost benefits attributable to their

hiring delays. The district court, after trial, found that the
2 This is not a class action, and if certain plaintiffs knew or

should have known of their causes of action that would not impute

the same knowledge to all of the plaintiffs. Nonetheless, the

plaintiffs’ knowledge is often discussed collectively because, at

trial, the City focused on facts—such as earlier litigation and

the presence of a NOFD “rumor mill”—that it argued should have

put all of the plaintiffs on notice of their claims. It argued

that all of these plaintiffs should have known of their claims

for the same reasons.

4

hiring policy did cause delay in most of the plaintiffs’ eventual

hires and awarded those members back pay, but denied damages for

lost pension benefits. 

II. DISCUSSION

The City’s principal argument at trial—and only basis for

appeal—is that the 1999 lawsuit was untimely. It argues that the

applicable one-year statute of limitations began to run when the

hiring decisions were made or, at the very latest, when the Lalla

and Courtade suits were filed in 1996. 

Thirteen plaintiffs cross-appeal the district court’s finding

that they were not entitled to damages because they could not show

they were harmed by the hiring policy, and the plaintiffs

collectively cross-appeal the district court’s refusal to award

compensation for lost pension benefits.

A. Prescription

The central issue is whether the Lalla and Courtade suits,

filed years before this suit, should have put plaintiffs on notice

of their causes of action, thereby triggering the one-year statute

of limitations and making this suit untimely.2
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1. Standard of Review

The district court found after trial that the plaintiffs

neither knew nor should have known of their causes of action before

Superintendent McCrossen’s deposition on May 13, 1998, thus

suspending the statute of limitations until that day. This Court

reviews such determinations, when made after trial and not on

summary judgment, for clear error. See Colonial Penn. Ins. v. Mkt.

Planners Ins. Agency, 157 F.3d 1032, 1036 (5th Cir. 1998); Glass v.

Petro-Tex Chem. Corp., 757 F.2d 1554, 1562 (5th Cir. 1985).

2. The Statute of Limitations and Contra Non Valentem

Plaintiffs assert their discriminatory hiring claims under the

Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. §§

1981, 1983, 1985, and corresponding state statutes. In § 1983

claims, the applicable statute of limitations is that which the

state would apply in an analogous action in its courts. Pegues v.

Morehouse Parish Sch. Bd., 632 F.2d 1279, 1280-81 (5th Cir. 1980).

In accordance with applicable Louisiana law, we apply a one-year

liberative prescriptive period to these claims. See LA. CIV. CODE

art. 3492. 

The discriminatory acts in this case took place between 1992

and 1995, when the plaintiffs were denied hiring preference based

on race. This suit was not filed until 1999, well beyond the oneyear limitations period. Once it is established that the statutory

limitations period has run, the plaintiffs have the burden to prove
3 This is a variant of what is typically referred to as the

“discovery rule” in other jurisdictions. 

4 The plaintiffs consistently claimed that they learned of these

claims when contacted by a lawyer in December, 1998, or January,

1999. 

6

that some exception to prescription applies. Terrebonne v. Mobil

Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).

The plaintiffs argued, and the district court found, that the

contra non valentem doctrine operated to suspend the limitations

period, making their claims timely. This doctrine applies in four

distinct instances under Louisiana law, but the only one relevant

here is that prescription is suspended “when the plaintiff does not

know nor reasonably should know of the existence of the cause of

action.” Id. at 884 n.37.3 “It does not operate to toll the

running of the limitation period until such time as plaintiff

discovers all of the elements of a cause of action. Once a

claimant learns that she has been injured, the burden is on her to

determine whether she should file suit.” Colonial Penn., 157 F.3d

at 1034; see also Jordan v. Employee Transfer Corp., 509 So.2d 420,

423 (La. 1987). 

The plaintiffs argue that the limitations period for their

claims was suspended until the end of 1998, when each individually

learned that his hiring delay was caused by the discriminatory

hiring policy.4 The City counters that earlier litigation should

have either alerted the plaintiffs that they were discriminated
5 Glass concerned a “continuing violation,” which is not an issue

before this court. Nonetheless, the question in Glass was nearly

identical to the one here. See Glass, 757 F.2d at 1561. 

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against or given them sufficient notice to investigate possible

claims. Trial testimony suggests that a few of the plaintiffs

heard vague rumors about the Lalla litigation more than a year

before this suit was filed, but did not know that it affected them.

The district court found that, despite possibly knowing of the

Lalla litigation, “the Bourdais plaintiffs were not similarly

situated because they had been hired from the 1991 Register and

Lalla had not been hired as a Fire Recruit from that Register when

he filed his lawsuit.” 

Whether the extremely limited knowledge certain plaintiffs had

of the Lalla and Courtade suits—and the others arguably should have

had—triggered the statute of limitations is a fairly close

question. The most instructive case from this circuit is Glass v.

Petro-Tex Chem. Corp., 757 F.2d 1554 (5th Cir. 1985).5 In that

case, a woman suspected that she was denied a promotion due to sexbased discrimination and voiced those suspicions years before she

brought her suit. Nonetheless, this Court found that her mild

suspicions were not sufficient to put her on notice and to trigger

the limitations period. This Court noted that the plaintiff “did

not know and could not reasonably be expected to have realized

that” she was the victim of discrimination. Id. at 1561; but cf.
6 At oral argument, the City asked this Court to find as a matter

of law that once an injured party realizes he has a claim, all

similarly-situated individuals injured by the same act should

also be found to have knowledge of their claims. There is no

legal support for that approach. That proposed rule is based on

the City’s misplaced belief that prescription begins to run once

a plaintiff could have known of his claims, which is a critically

different standard than the should have known standard actually

applicable under Louisiana law. 

While the City makes a reasonable policy argument that

liability for past acts should not be perpetual, it is an

argument that is better brought before the legislature. In

certain areas, such as medical malpractice, the Louisiana

8

Eastin v. Entergy Corp., 865 So.2d 49 (La. 2004) (plurality

opinion) (limitations period for employee’s discriminatory

discharge claim begins immediately upon termination, regardless of

whether circumstances of discharge merit suspicion). 

Like in Glass, we cannot conclude that these plaintiffs should

have known about or should have investigated potential

discriminatory hiring claims. Even if they had knowledge of the

Lalla litigation, that knowledge would not necessarily raise

serious suspicions among these plaintiffs who NOFD actually hired

from the 1991 Register. One reasonable conclusion they could draw

is, because they were hired, they were not subject to the same

discrimination the Lalla and Courtade plaintiffs complained of.

Given the differences between these plaintiffs and those in

the Lalla and Courtade suits, it was not clearly erroneous for the

district court to find that prescription did not begin to run for

these plaintiffs before May 13, 1998.6
legislature has shown a willingness to limit the contra non

valentem principle. See LA. REV. STAT. ANN. § 9:5628 (requiring

that a medical malpractice claim be brought within three-years of

the wrongful act, regardless of the plaintiff’s knowledge of her

claim). 

7 This Court has held, in a decision abrogated on other grounds,

that the Mt. Healthy burden-shifting methodology applies to

racial preference cases. Hopwood v. Texas, 78 F.3d 932, 956 (5th

Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306

(2003). 

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B. Refusing Damages to Thirteen Plaintiffs

After finding that the plaintiffs’ claims had not prescribed,

the district court denied damages to seventeen plaintiffs.

Thirteen of them cross-appeal. The district court found that those

plaintiffs did not prove they were eligible for hire into an

earlier class and had “not met their burden of showing that they

are entitled to damages for delay in hiring.” Plaintiffs argue

that, given the existence of a discriminatory policy, the district

court should have shifted the burden to the City to prove that the

hiring delays would have occurred even absent the infirm policy.

See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 284 (1977).

Assuming that Mt. Healthy is applicable in this context,7 the

burden only shifts to the defendant after a plaintiff proves that

(1) there was an adverse employment action, and (2) race played a

“substantial or motivating factor” in it. See Brady v. Fort Bend

County, 145 F.3d 691, 711–12 (5th Cir. 1998). These thirteen
8 The district court’s discussion of this point is somewhat

misguided. It discusses the plaintiffs’ failure to prove they

were eligible for hire into an earlier class as an issue of

causation and damages, skipping the initial question of whether

an adverse employment action ever took place. Unlike wrongful

discharge claims, where a dispute about whether the plaintiff was

discharged is unlikely, a delayed hiring claim will often give

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plaintiffs failed to show they were eligible for hire in any class

earlier than the ones they were hired into. In other words, they

failed to show that they suffered any adverse employment action

whatsoever. 

While these plaintiffs’ names were on the 1991 Register, they

did not show that they were on the eligibility lists and passed the

additional screening in time to be eligible for hire into an

earlier class. The district court found that of these plaintiffs,

“none produced any evidence to show that they were actually

eligible for hire on the dates they claim they should have been

hired.” 

The plaintiffs complain that the eligibility lists were

incomplete and point to individuals who were hired into classes

even though their names were not on the accompanying lists. Even

if the City’s eligibility lists were incomplete, that does nothing

to discharge the plaintiffs’ initial burden of demonstrating that

an adverse action occurred. They could have shown through other

means that they were eligible for hire into earlier classes, but

plaintiffs never point us to any evidence satisfying this initial

burden.8
rise to a question of fact about whether the plaintiff was hired

at the earliest appropriate time. While the district court

inartfully discusses this as an issue of damages, the factual

finding is absolutely clear, “that all were hired into the first

Recruit class for which they were actually eligible to be hired.”

9 Whether a plaintiff’s delayed accumulation of pension benefits

should be considered back pay or front pay appears to be an

unresolved issue in this Circuit. Neither party briefed this

issue and it has therefore been waived. We do not disrupt the

district court’s classification of this award as front pay but

note that the issue remains undecided. 

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The district court did not err in placing the burden of

showing an adverse employment action took place on each plaintiff.

C. Pension Damages

Plaintiffs argue that the hiring delays cause their pension

benefits to be perpetually smaller than they should be because

those benefits are calculated in relation to the number of years

each employee serves. While the district court awarded plaintiffs

damages for back pay and lost seniority status, it denied them

monetary damages for the accompanying delay in accumulating and

receiving pension benefits. Plaintiffs cross-appeal that decision.

The district court treated the request for lost pension

benefits as a claim for front pay and that classification is not

challenged here.9 Front pay awards are reviewed for abuse of

discretion. Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869,

869 (5th Cir. 1999) (citations omitted). The district court is

afforded broad discretion in determining awards for lost future

benefits. See Deloach v. Delchamps, Inc., 897 F.3d 815, 822 (5th
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Cir. 1990). 

The district court found that awarding “present monetary

damages for the loss of a prospective benefit that either may not

ultimately be earned, or that may actually be earned and collected

in full in the future, would go beyond making plaintiffs’ [sic]

whole for the unlawful discrimination they suffered. It would

provide a windfall bonus.” The court reasoned that the pensions

will not vest unless each plaintiff continues to work at NOFD for

twenty years, a scenario too speculative to base a monetary award

on. 

We find that the district court did not abuse its discretion

in refusing to award monetary damages for the delay in accumulating

and receiving pension benefits. The dollar amount of damages

attributable to the delayed pension benefits is extremely

speculative, and given the uncertainty of whether the pensions will

ever vest, the district court was within its discretion to find

that awarding such damages would go beyond making the plaintiffs

whole. Given the speculation involved in calculating the amount of

monetary harm incurred, if any, it was not an abuse of discretion

to refuse such an award.

III. CONCLUSION

The district court did not clearly err when it found that each

of the present plaintiffs’ claims were timely, it appropriately

dismissed thirteen plaintiffs who failed to show they suffered from
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an adverse employment decision, and it was within its discretion to

deny pension-related damages. Accordingly, we AFFIRM the district

court’s judgment and award.