* 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should not be published and is not precedent except under the limited circumstances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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-30342

Summary Calendar

_______________

SHYRL PATTERSON BAGNERIS,

Plaintiff-Appellant,

VERSUS

ORLEANS INDIGENT DEFENDERS PROGRAM; DOUGLAS WILSON;

FRANK G DESALVO; JAMES C LAWRENCE; WILLIAM O’HARA;

and JOHN BLANCHARD,

Individually and in Their Capacity as Members of the

Board of Directors of the Orleans Indigent Defender Program;

and

NUMA BERTEL,

Individually and in His Capacity as Director of the

Orleans Indigent Defender Program,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(93-CV-1521)

_________________________

December 18, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Shyrl Bagneris appeals a jury verdict in favor of the Orleans
2

Indigent Defender Program (“OIDP”), Douglas Wilson, Frank DeSalvo,

James Lawrence, William O’Hara, John Blanchard, and Numa Bertel

(collectively, the “defendants”) on her claims that the defendants'

policy of requiring employees seeking election to office either to

resign or take an unpaid leave of absence violates the First and

Fourteenth Amendments. Finding no error, we affirm.

I.

Pursuant to the subject policy, Bagneris, a staff attorney

with the OIDP who handles motions and trials in the Criminal

District Court for the Parish of Orleans, was placed on unpaid

administrative leave during her ultimately unsuccessful 1992 run

for an elected judicial position in Orleans Parish. Among the

proffered justifications for the OIDP policy was the OIDP's desire

to avoid the additional costs of hiring substitute counsel to cover

responsibilities to OIDP clients and to the courts neglected by

campaigning employees.

Bagneris challenged the OIDP policy, alleging that it

infringed impermissibly upon her rights of freedom of speech and

association and denied her equal protection of the laws. Bagneris

alleged additionally that the policy was discriminatory in its

selective application against women. A jury rejected each of

Bagneris's claims.

II.
3

We will not set aside a jury verdict on evidentiary grounds

unless it is against the great weight, not merely the preponderance, of the evidence. See Pagan v. Shoney's, Inc., 931 F.2d 334,

336 (5th Cir. 1991). We review all evidence in the light most

favorable to the verdict and will affirm unless the evidence points

“so strongly and overwhelmingly in favor of one party that the

court believes that reasonable men could not arrive at a contrary

[conclusion].” Whatley v. Armstrong World Indus., 861 F.2d 837,

839 (5th Cir. 1988). We accept all credibility inferences that

tend to support the verdict. See United States v. Gallo, 927 F.2d

815, 820 (5th Cir. 1991).

A.

Bagneris first alleges that the jury concluded incorrectly

that the OIDP policy did not impermissibly infringe upon her First

Amendment rights of freedom of speech and association. The parties

agree that our decision in Morial v. Judicial Comm'n, 565 F.2d 295,

307 (5th Cir. 1977) (en banc), cert. denied, 435 U.S. 1013 (1978),

elucidates the proper level of scrutiny by which the OIDP policy is

to be reviewed: The OIDP must demonstrate a reasonably necessary

relationship between its policy and the proffered reason for its

adoptionSSmaintaining the efficiency of its office.

Bagneris offers two arguments to support her contention that

such a reasonably necessary relationship is lacking. First, she
1 One of the employees was a member of the Orleans Parish School Board, and

the other was a member of the Republican Executive Committee. It is uncontested

that it was not until after its adoption of the policy that the Board became

aware that these employees already held public offices.

2 For example, the Board noted that because the Orleans Parish School Board

member worked for OIDP during the afternoons only, his School Board

responsibilities and campaign activities would not interfere with his OIDP

responsibilities. 

4

points to the Board's adoption of a grandfather clause exempting

the two current employees who already held elected positions to

which they were seeking re-election.1 Notwithstanding the Board's

argument that the grandfather clause would not upset the proffered

goals of the policy because the protected elected positions and the

campaign requirements of the respective positions did not interfere

with the employees' ability to perform their OIDP jobs

efficiently,2 Bagneris maintains that the proffered explanation

“[c]learly and unequivocally” demonstrates that the “reasons for

exempting them reflect the irrationality of the policy.” Second,

Bagneris contends that the nearly two-month delay between enactment

of the policy and its dissemination to the OIDP employees militates

against a finding that the policy was rational. 

Whether Bagneris disbelieves OIDP's proffered justification

for the policy and doubts that its actions were consistent with its

justification is beyond the scope of our review. We do not believe

that the evidence points “so strongly and overwhelmingly” in favor

of Bagneris that a reasonable jury could not have found otherwise.

See Whatley, 861 F.2d at 839. The jury was entitled to make

credibility judgments regarding the veracity of OIDP's proffered
5

justifications, and we will not disturb any such inferences. See

Gallo, 927 F.2d at 820.

B.

Bagneris next challenges the OIDP policy on equal protection

grounds, arguing that the grandfather clause impermissibly creates

two classifications of individuals similarly situated who are

treated unequallySSincumbents who are grandfathered and nonincumbents who are subject to the policy. We employ the same

standard of scrutiny to this derivative equal protection claim as

to the First Amendment claim. See Morial, 565 F.2d at 304.

Again, constrained by the deferential standard of review

afforded jury verdicts, we reject Bagneris's contention that there

is no rational basis for concluding that incumbents will not be

required to miss more time from work because of campaign activities

than will non-incumbents. With respect to the only two individuals

to whom the grandfather clause applied, the OIDP presented the jury

with ample justification for the group classificationSSi.e., that

neither of the positions for which these individuals were seeking

re-election required campaigning that would interfere with his OIDP

responsibilities. Bagneris was entitled to at trial, and did,

attack the veracity of these explanations, but the jury found

otherwise, and we are not convinced on review that the evidence
6

presented would preclude a rational jury from so finding. 

C.

Finally, Bagneris asserts that the policy discriminates

against her impermissibly on the basis of her sex. That is,

because the two employees who were grandfathered were males,

Bagneris alleges that the policy, as applied to her, is discriminatory. 

Although Bagneris alleges a cause of action for sex discrimination under 42 U.S.C. § 1983, these facts suggest, as do her later

citations in the brief, a disparate impact theory of discrimination. We note, however, that a plaintiff bringing a constitutional

claim of sex discrimination under § 1983 must demonstrate purposeful discrimination. See Irby v. Sullivan, 737 F.2d 1418, 1424 n.7

(5th Cir. 1984). As such, her citations to title VII cases that

permit recovery upon a showing of disparate impact, even absent

purposeful discrimination, are inapposite. See International Bhd.

of Teamsters v. United States, 431 U.S. 324 (1977). 

Because Bagneris’s claim requires proof of purposeful

discrimination, and because she does not even allege such, we do

not find any evidence of sexual discrimination by OIDP. Rather,

the equal protection claim that she alleges is based upon sex

merely collapses into the above equal protection claim based upon

incumbency. The result, accordingly, must be the same.
7

AFFIRMED.