### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-51049 Summary Calendar

HAROLD PIATT, Plaintiff–Appellant
v. CITY OF AUSTIN; TOBY FUTRELL, In her official capacity as City Manager of the City of Austin; STANLEY L. KNEE, In his official capacity as Police Chief of the City of Austin; ART ACEVEDO, In his official capacity as Police Chief of the City of Austin, Defendants–Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 1:07–CV–520

Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM: * Plaintiff–Ap pellant Harold Piatt brought suit against the City of Austin (“the City”), City Manager Toby Futrell, former-Chief of Police Stanley Knee (“Chief Knee”), and current Chie f o f Police Art Acevedo (collectively, “the Ap p e l l e es”), complaining that he was improperly passed over for appointment to Assistant Police Chief in 2003 and 2006, a n d that this constituted racial U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 5, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-51049 Document: 00511562989 Page: 1 Date Filed: 08/05/2011No. 10-51049

discrimination in violation of federal, state and local law. After the district court di s mi s s e d Pi att’ s cl ai m s pertaining to the 2003 appointments as time-barred, th e parties tried Piatt’s remaining claims to the court in a th r e e-day bench trial. The district court found that a l th o u gh C h ief Knee had indeed used race as a factor in making one of the 2006 appointments, he would have made the same appointment even without any impermissible consideration of race. The court awarded Piatt attorney’s f ees and costs on his Title VII claim, see 42 U.S.C. § 2000e et seq. , bu t it awarded no damages, finding that the Appellees had established a valid mixed-motive defense as described in Price Wat e rh ouse v. Hopkins , 490 U.S. 228 (1989). The court entered a take nothing judgment o n Piatt’s remaining claims. Piatt only appeals the district court’s judgment on his Title VII claim. He contends that the Appellees did not meet their burden of proof in e stablishing

a mixed-motive defense to the 2006 race-conscious appointment. This appeal requires us to determine whether the district court’s finding that the Appellees had established such a defense is clearly erroneous. We find that it is not, and we AFFIRM. I This case arises from a series of municipal employment decisions. In 2003, and a g a i n in 2006, Police Chief Stanley Knee, then-Chief of the Austin Police Department (“the Department”), appointed two qualified candidates to serve on his staff as Assistant Police Chiefs. As head of the Department, Chief Knee had sole authority to select the Assistant Chiefs w h o w o u ld serve under him. See T E X

. L O C AL G O V’ T C O D E AN N

. § 143.014(b). Aside from the requirement that he select a candidate who met the minimum criteria for appointment set out in the Texas Local Government Code and any applicable labor agreements, see id. at §§ 143.014(c), (d)(1)–(3), Chief Knee’s discretion in selecting his Assistant Chiefs

was ple nary. He was not required to conduct a formal application or selection

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process, nor was a ny examination, skills assessment, or interview required on the part of any candidate. Unlike all other police ranks, Assistant Chiefs serve at the pleasure of the Police Chief and can be returned to the rank from which they were appointed at the Chief’s discretion. Id. at § 143.014(g). In 2003, Chief Knee evaluated th e D epartment’s qualified officers and appointed a Caucasian male and an African-American female to serve as Assistant Chiefs. Three years later, Chief Knee selected two more off i c e rs to

serve as Assistant Chiefs after several personnel changes. When he made the 2006 appointments, 950 officers at all ranks were statutorily qualified for the positions: 18 were Commanders, including Piatt. Chief Knee eventually s el e cted Commanders David Carte r , a Caucasian, and Charlie Ortiz, a Hispanic, for appointment to his staff. Piatt sought consideration for the Assistant Chief appointments in 2003 and 2006. But despite having consistently r e c e iv e d average or above-average performance evaluations and meeting the statutory criteria, Commander Piatt was passed over on both occasions. Piatt filed suit against the City, Chief Knee, and others in June 2007. He alleged that the Appellees had engaged in racial discrimination in their official capacities in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e et seq. , and various other federal, state, and local laws. Piatt also made 1 claims against Chief Knee and City Manager Toby Futrell in their individual capacities under 42 U.S.C. § 1983. T h e Ap p e llees moved for summary judgment on all claims. The distri c t court f o u n d th at Piatt’s c laims relating to the 2003 appointments were barred

In additio n to his Title VII clai m, Piatt brou ght sui t unde r 42 U. S. C. § 1983; the Texas 1 Com mi ss ion on Hu man Rights Act, Tex. Labo r C o d e . An n . § 21.0 01 et seq . , and the City of Aust in Unlaw ful Emp loym en t P r a c t ices ordinanc e, Aust in, Tex. Code of Or dina nces § 5 –3–4(A)( 1)–( 2). 3 Case: 10-51049 Document: 00511562989 Page: 3 Date Filed: 08/05/2011No. 10-51049

by the applicable statute of limitations, and th e c o u rt granted summary j u d g m e n t on those claims accordingly. As to Piatt’s § 1983 claim, the cour t granted summary judgment for Futrell in her individual capacity. The court left for trial: (1) Piatt’s various claims against the City and the off i c i a l c a p acity defendants relating to the 2006 appointments; and (2) Piatt’s § 1983 claim against Chief Knee, in his individual capacity, for his failure to select Piatt for Assistant Chief in 2006. At trial Chief Knee described his overall policing strategy, which emphasized the use of small-area commands that focused on outreach and were particularized to each community’s needs. Chief Knee explained that his 2006 appointment decisions were based on this strategy and that he sought to appoint the officers he believed could interact with the community and best execute this

s t r a t egy. Chief Knee explained in detail that the motivating factors in his decision to select Comman d e r O rtiz were Ortiz’s communication skills and ability to interact with the community. After a th ree-day bench trial, the district court found that the Appellees had established a mixed-motive defense to Piatt’s Title VII claims, and that no evidence supp ort e d Pi att’ s a s s ertio n—relating to his remaining claims—that the City maintained an un w ritten policy of racial set-asides. The court awarded Piatt attorney’s fees and costs on his Title VII claim, but no damages. The court also ordered that Piatt take nothing from the Appellees or Chief Knee, in his individual capacity, on the other claims. This appeal followed. II “The s t a n dard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal is s u e s a r e r e viewed de novo.” Kona Tech. Corp. v. S. Pac. Transp. Co. , 225 F.3d 595, 601 (5th Cir. 2000). The district court’s finding that the Appellees established a mixe d

- motive defense is a factual finding that we review for clear error. See Thomas v. NFL Players Ass’n , 131

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F.3d 198, 202–03 (D.C. Cir. 1997). “A finding is clearly erroneous if it is without substantial evidence to support it, th e c o u rt misinterpreted the effect of the evidence, or this court is convin c e d that the findings are against the preponderance of credible testimony.” Bd. of Trs. New Orleans Employers Int’l Longshoremen’s Ass’n v. Gabriel, Roder, Smith & Co. , 529 F.3d 506, 509 (5th Cir. 2008). We will only reverse under the clearly erroneous s t an d ar d where, viewing the evidence as a whole, “we have a definite and firm conviction that a mistake has been committed.” Canal Barge Co. v. Torco Oil Co. , 220 F.3d 370, 375 (5th Cir. 2000) (citation omitted). III P i a t t raises one issue on appeal—whether the district court erred in finding that the Appellees had establis h e d a mixed-motive defense to Piatt’s Title VII claim. Specifically, Piatt c o ntends that the record contains no evidence 2 showing that Chief Knee would have appointed Commander Ortiz to Assistant Chief in 2006 based solely on objective, race-neutral criteria. We disagree. Under Title VII, an unlawful employment practice is established when the plaintiff demonstrates tha t race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. See 42 U.S.C. § 2000e–2(m). But even where a plaintiff establishes an unlawful practice through proof at trial, his remedy is limited to injunctive and declaratory relief, costs, and attorney’s fees if the employer can d e m onstrate that it would have taken the same action in the absence o f th e impermissible motivating factor. See 42 U.S.C. § 2000e–5(g)(2)(B)(i); accord Garcia v. Cit

y of H o uston , 201 F.3d 672, 676 (5th Cir. 2000). This employer’s

Piatt doe s not chall enge the di st ric t cour t’s sum mary judgmentrelating to the 2003 2 app oint me nts , nor doe s he chall enge the cour t’s judgm ents on his clai ms (ot her than the Title VII clai m) agains t the City and the off icia l cap acit y def

enda nts , o r the § 1983 clai m agains t Chief Kn ee in his individual cap acity. Thes e clai ms are wa ived acc ordingly. See As kanase v. Fatjo , 130 F.3d657 , 668 (5th Cir

. 1997) ( “All iss ues no t brie fedar e w aived .”). 5 Case: 10-51049 Document: 00511562989 Page: 5 Date Filed: 08/05/2011No. 10-51049

defense was discussed at length in Pr i c e W a t erhouse v. Hopkins , 490 U.S. 228 (1989), and is commonly known as the mixed-motive defense. In Price Waterh o u se , the Supreme Court explained that a mixed-motive defense could be established in Title VII cases, like this one, where the employer presents objective proof that it would have made the same employment decision had it not taken into account the prohibited factor. Id. at 252. Moreover, the legitimate reason must have been present at the time the decision was made. Id. And, it is not enough for the employer to show that the same decision would have been justified; the employer must show that its legitimate reas o n w o u l d have produced the same decision standing alone. Id. The crux of Piatt’s claim is that the record contains no objective evidence showing that Chief Knee would have definitively made the same hiring decision in the absence of any impermissible use of race. Piatt hangs his appeal on one excerpt from Chief Knee’s trial testimony: Q: If you had n ’ t c o nsidered race in 2006, who would you have promoted? A: I would most likely have picked Charlie Ortiz. This equivocation, Piatt suggests, “deals in probabilities” and fails to objectively show that Chief Knee would have selected Ortiz. See, e.g., Appellant’s Br. at 12 (“At no time did Knee say th a t h e ‘ w o u l d have made the same decision in the absence of discrimination.’”). But taking this testimony in context suggests otherwise: I would most likely have picked Charlie Ortiz. Let me explain why. We had just had a shooting in the southeast area which he was the area commander. It was a v e ry volatile time. Immediately following the shooting, I went to a community meeting that lasted for hours so I could tell the people in that community were very ups e t

. It was a very explosive situation. I not only got to see Charlie Ortiz interact with some of the most vocal, angry people, but I go t t o s e e the people that worked for him do the same thing. Within a few weeks of that meeting, Charlie Ortiz had worked that

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community so well that we had a – I think it was a peace march in which we had a rall y a t the community center where a few weeks before people were yelli n g and screaming at us. Charlie had organized that event. To see the progression from some of the same people th a t marched with us that day, it was very impressive. Whe n y ou – when you look at the pieces that go into making up a team, those are the kinds of qualities that one Chief of Police or one CEO needs to make sure that he’s got on his team.

. . . I believe the skills that C h a rlie displayed were skills that would clearly be needed . . . . The record also shows that Chief Kne e c onsidered Ortiz the best qualified to execute his community focused policing strategy, whereas, Chief Knee and Piatt shared different views about the merits of community-based policing. The district court credited this and other testimony in finding that the Appellees had established a valid Price Waterhouse mixed-motive defense by a preponderance of the evidence. Based on the totality of the evidence, we cannot say that the district court’s finding was clearly erroneous. IV The district court’s judgment is AFFIRMED.

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