United States Court of Appeals,

Eleventh Circuit.

No. 95-8809.

Jody SHEALY, Ricky Dudley, Terry Cook, Ronald Rowe, Ted Barton,

Intervenors-Appellants,

v.

The CITY OF ALBANY, GEORGIA, a municipal corporation, et al.,

Defendants-Appellees.

July 31, 1996.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 1200), Wilbur D. Owens, Jr., Judge.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior

Circuit Judge.

PER CURIAM:

Five white firefighters intervened in this decades-old civil

rights action against the City of Albany, Georgia claiming reverse

discrimination in the promotion of a black to the position of

battalion chief. The district court held an evidentiary hearing

after which it denied the white firefighters any relief. This

appeal ensued. For the following reasons, we vacate a portion of

the district court's order and remand for further proceedings.

I. Background

This class action was instituted on August 31, 1972, against

the City of Albany under 42 U.S.C. § 1981 and § 1983 and the

Fourteenth Amendment to the United States Constitution alleging a

pattern or practice of racial discrimination in hiring, promotion,

assignment and various other employment practices. On September 2,

1976, the district court for the Middle District of Georgia, Albany

Division, entered a permanent injunction enjoining the City of
 1

Paragraph 11 of the 1976 Permanent Injunction provides:

Any person who believes that he has been

discriminated against on account of race or that

the provisions of this order have been violated,

may file a written complaint with the Central

Employment Office. The Central Employment Office

shall investigate the complaint and seek to

resolve it.... If the complaining party is not

satisfied with the results as contained in the

report, he or she may, within sixty (60) days of

the date of receipt of the report, file a motion

with the clerk of this court to have the court

determine the matter. The clerk shall cause a

copy of the motion to be mailed to the defendants,

who shall respond to it within ten (10) days. The

clerk shall then refer the motion and the response

to the court. Proceedings shall thereafter be in

accordance with the Federal Rules of Civil

Procedure.

In its subsequent order denying relief to the white

applicants, the court stated that it was considering their

complaint under Paragraph 11, as a complaint of persons who

believe they have been discriminated against on account of

Albany (City) from such practices and mandating equal employment

opportunities. To this end, the court required that the City

undertake many affirmative actions designed to achieve "a work

force in which the proportion of total black employees to total

white employees viewed (a) overall, (b) by job classification and

description, (c) by department, and (d) by rate of pay is at least

equal to the proportion of blacks to whites in the working age

population as shown by the most recent Albany, Georgia Standard

Metropolitan Area reports of the Bureau of the Census."

In February of 1994, from a pool of six applicants, the Fire

Chief promoted a black applicant to the position of battalion chief

in the City's Fire Department. The five non-selected applicants

are white. In December of 1994, the white applicants filed a

"Motion of Prospective Plaintiffs For Intervention."1 The
race. 

 2The district court did dissolve the permanent injunction,

holding that equal opportunity in employment practices by the

City of Albany had been achieved. Neither party appeals this

decision. 

 3The court stated: "In the court's best judgment, there is

no evidence to support a claim of racial animus on the part of

the Fire Chief, who is the one who made the selection." 

intervenors sought broad relief, including the dissolution of the

1976 permanent injunction, the setting aside of the complained of

promotion, and the re-opening of the selection process.2

There was some initial briefing regarding the intervention,

and on May 22, 1995, the district court held an evidentiary

hearing. The Fire Chief, who is black, testified as to the

subjective process he used in selecting the successful applicant

for promotion. The district court limited cross-examination of the

Chief. The five unsuccessful applicants then sought to testify

regarding the superiority of their qualifications over those of the

selected applicant for the promotion in question. The district

court declined to hear that testimony, but indicated that, if

subsequently filed, the court would review the personnel files of

the white applicants to determine their qualifications relevant to

the successful applicant.

Approximately two hours later, and prior to the filing of the

personnel files, the court ruled that there was no evidence of

racial animus in the selection of the black applicant who was

promoted.3

II. Analysis

 In reverse discrimination suits, plaintiffs must establish a
 4

A review of the docket reveals that there was no motion to

dismiss or for summary judgment filed by either party. 

Plaintiffs, therefore, apparently had no opportunity to file

supporting evidentiary materials. 

McDonnell Douglas prima facie case. Wilson v. Bailey, 934 F.2d

301, 304 (11th Cir.1991). The test requires a reverse

discrimination plaintiff to prove:

1) that he belongs to a class;

(2) that he applied for and was qualified for a job;

(3) that he was rejected for the job; and

(4) that the job was filled by a minority group member or a

woman.

Id. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

 Although subjective promotion criteria are not discriminatory

per se, neither may they be used to disguise an impermissible

race-based selection. Hill v. Seaboard Coast Line R. Co., 767 F.2d

771, 775 (11th Cir.1985). Subjective criteria tend to facilitate

the consideration of impermissible criteria such as race. Roberts

v. Gadsden Memorial Hospital, 835 F.2d 793, 798 (11th Cir.1988).

Where it is alleged that a race-based promotion decision has been

made, proof of intent to discriminate racially is necessary. Hill,

767 F.2d at 773. Of course, direct evidence of intent is often

unavailable and a circumstantial case may be proven. CooperHouston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir.1994).

Intervenors in this case were not permitted to present

evidence at the May 22nd hearing on the issue of the Fire Chief's

intent to racially discriminate in the selection of a new battalion

chief.4 Intervenors' attempt to testify regarding their
qualifications and introduce evidence comparing their

qualifications to those of the successful applicant was cut off by

the district court.

In refusing the evidence, the district judge made a plea for

Fire Department collegiality, saying:

The Court has permitted you to examine the individuals who

were involved in the hiring decision, but it declines your

suggestion that now the person selected be examined in this

Court or the persons not selected be examined. As I have

already suggested, all of these people are going to have to

work together after this hearing is concluded. This Court is

not a forum to permit squabbles within public agencies as to

who has already been promoted, and the propriety as between

those people....

 While aspirational, this is (1) not sufficient reason to deny

the presentation of admissible evidence; and (2) to no avail, the

complaint having been lodged with its inherent, and unavoidable,

disharmony.

 We review the district court's exclusion of intervenors'

evidence for an abuse of discretion. BankAtlantic v. Blythe

Eastman Paine Webber, Inc., 955 F.2d 1467, 1476 (11th Cir.1992),

cert. denied, 506 U.S. 1049, 113 S.Ct. 966, 122 L.Ed.2d 122 (1993).

A district court evidentiary ruling is not disturbed unless there

is a clear showing of abuse of discretion. U.S. Anchor Mfg., Inc.

v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). In this

case, however, we are convinced there was such an abuse of

discretion.

In denying intervenors relief, the district court said there

was "no evidence" of racial animus in the selection of the

successful applicant. If, indeed, there had been no evidence, it

would have been because the intervenors were not permitted to
 5

There was some evidence introduced which the district court

might have found supported the claim of discrimination. Two

Assistant Fire Chiefs testified that the Fire Chief asked them to

give their opinions as to which applicant should be promoted, but

to consider only the two black applicants. There was also some

testimony by the Fire Chief, himself, regarding the relative

qualifications of the black and white applicants. 

 6The proffered evidence, as well as that referred to in

footnote 5, dealt with the relative qualifications of the several

applicants. Insofar as this evidence might have supported an

argument that the Fire Chief made a mistake and failed to select

the best qualified, the evidence has no value. The district

judge does not sit as a sort of "super personnel officer" of the

City or its fire department, correcting what the judge perceives

to be poor personnel decisions. See Roberts, 835 F.2d at 802-03

(Hill, J., specially concurring). However, insofar as evidence

of relative qualifications of the applicants amounts to

circumstantial evidence of intent to discriminate on the part of

the Fire Chief, if, indeed, it does so, that evidence must be

received and considered before a finding can be made as to the

Fire Chief's intentions. See Wilson, 934 F.2d at 304. 

 7

Although this case has been effectively terminated by the

dissolution of the permanent injunction, plaintiffs were allowed

to intervene prior to that dissolution. Therefore, their claims

must be resolved within the context of this case prior to its

being dismissed. Furthermore, we express no opinion on the

effect of the permanent injunction on the permissibility of a

race-based promotion. 

introduce any.5

The intervenors were effectively denied the opportunity to

make out and support a prima facie case by the district court's

refusal to allow them to testify regarding their qualifications or

to review their personnel files as promised. Such testimony may

have raised an inference of intentional discrimination which the

City would have had to rebut.6 McDonnell Douglas, 411 U.S. at 804,

93 S.Ct. at 1825. While we express no views on the merits of their

claim, or of the strength of the evidence they sought to introduce,

intervenors must be allowed the opportunity to make out their prima

facie case.7
 8

We do not vacate that portion of the district court order

that dissolves the permanent injunction. 

Accordingly, we vacate that portion of the district court's

order which denies any relief to intervenors8 and remand for

further proceedings not inconsistent with this opinion.

VACATED and REMANDED.