Unpublished Disposition, 896 F.2d 556 (9th Cir. 1983)

MEMORANDUM^* 

Thomas Walker and Willie Haskins, plaintiffs-appellants, filed this suit alleging defendant-appellee dismissed them from the City Department Jail Division in violation of Title VII of the Civil Rights Act of 1963, 42 U.S.C. §§ 2000e-2000e-17.

FACTS

The City of Los Angeles employed Thomas Walker and Willie Haskins as station officers for the City Police Department Jail Division. On August 14, 1983, Walker and Haskins took Charles Thomas, a booked prisoner, into a padded cell and forced him to remove his clothing. Appellants then proceeded to beat the prisoner for five to ten minutes.

A formal investigation into the incident was conducted and a report submitted recommending that appellants be discharged. Acting Chief of Police Marvin Ianone approved the recommendation. Appellants appealed their dismissal to the Los Angeles City Board of Civil Service Commissioners (Board). The Board conducted a two-day hearing. Each party was represented by counsel, witnesses were called, and numerous exhibits admitted. The Board sustained the charges against Walker and Haskins. Appellants then filed a Petition for Writ of Mandate with the Superior Court of California. After a hearing in which both parties were represented by counsel, the petition was denied. Appellants did not appeal the Superior Court's judgment.

Walker and Haskins also filed charges with the Equal Employment Opportunity Commission (EEOC) pursuant to Title VII of the Civil Rights Acts arguing that their dismissal was a result of discrimination based on their being African-Americans. As evidence of discrimination, appellants point to three other incidents in which a station officer was disciplined after using excessive force. A Black officer hit and kicked a prisoner without just cause and was given a five day suspension. A Filipino officer hit a prisoner and was given a ten day suspension. A Caucasian officer hit a prisoner and then became involved in a second altercation which resulted in his discharge. After considering the proffered evidence, the EEOC determined there was reasonable cause to believe appellants had been discharged because of their race.

The District Court granted summary judgment in favor of Gates. Appellants argue on this appeal that the Board's findings that they beat a prisoner should not be given preclusive effect and because appellee's intent is at issue, the motion of summary judgment should not have been granted.

ANALYSIS

Appellants dispute whether they were the officers who beat the prisoner on August 14, 1983. Appellant's administrative appeal of their dismissal, however, offered them a full opportunity to be heard. A two-day hearing was held in which each party was represented by counsel, witnesses were called, and exhibits introduced. After the Board sustained the charges filed, appellants filed a Petition for Writ of Mandate in the Superior Court of California--which was denied. See Cal.Civil Procedure Code Sec. 1094.5(b) (West Supp.1989) (court reviews administrative findings to ensure fair trial and to determine whether there was prejudicial abuse of discretion). Because the administrative hearing offered appellants a full and fair opportunity to be heard and the administrative decision was reviewed by the state court, it must be given preclusive effect. See Kremer v. Chemical Construction, 456 U.S. 461, 485 (1982); Eilrich v. Remas, 839 F.2d 630, 633 (9th Cir. 1988); Garrett v. San Francisco, 818 F.2d 1515, 1520 (9th Cir. 1987).

The burdens of proof in a Title VII disparate treatment action are well established. The plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. The burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. If the defendant carries this burden, the burden shifts back to the plaintiff to prove by the preponderance of the evidence that the legitimate reasons the defendant proffered were not its true reason, but were a mere pretext. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Although Burdine involved disparate treatment in hiring, the formula may be adapted for use in other situations. See Sengupta v. Morrison-Knudson, 804 F.2d 1072, 1075 (9th Cir. 1986) (adapted test for suit involving discriminatory discharging). In Moore v. Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985), cert. denied, 472 U.S. 1021 (1985), the Fourth Circuit adopted the following test for suits involving disciplinary actions: plaintiffs must show that (1) they are within a protected class; (2) they were engaged in prohibited conduct similar to that of person not within that protected class and; (3) the disciplinary measures enforced against the plaintiffs were more severe than those enforced against the other person. The burden of persuasion must always remain with the plaintiff. Burdine, 450 U.S. at 253; Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988). A prima facie case may be established through direct proof of intentional discrimination or through evidence that indicates it is more likely than not that the employer's actions were based on unlawful considerations. Jauregui, 852 F.2d at 1134. But failure to allege specific facts sufficient to establish the existence of prima facie case renders a grant of summary judgment appropriate. Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987); Palmer v. U.S., 794 F.2d 534, 536-39 (9th Cir. 1986).

Appellants fall within a protected class. They have failed, however, to show that similarly situated non-Black employees have received less severe punishment for misconduct similar to that for which they were discharged. The evidence does not indicate that the Los Angeles Police Department is singling out Black officers for more severe punishment. The evidence is in fact contrary to the appellants' position. One Caucasian officer was discharged and a Black officer was treated more leniently than appellants. Although the Filipino officer was only suspended, there is extensive evidence showing that the Filipino's conduct was less excessive than the appellants' actions. The Filipino officer struck the prisoner only once, possibly with an open hand. Appellants, on the other hand, forced the prisoner into a cell, stripped him, and beat him for five to ten minutes. They were, moreover, on notice from the earlier disciplinary case that physical abuse of a prisoner was viewed as a serious offense by the Los Angeles Police Department. Thus more severe discipline of them than of earlier offenders was justified.

To bolster their position, appellants note that the EEOC issued a Determination of Probable Cause indicating the appellee may have discriminated when discharging appellants. Although the report is admissible into evidence, and is probative, it is not conclusive. See Chandler v. Roudebush, 425 U.S. 840, 863 (1976); Plummer v. Western Internat'l Hotels, 656 F.2d 502, 504 (9th Cir. 1981) (EEOC determination admissible but not binding); Bradhsaw v. Zoological Society, 569 F.2d 1066 (9th Cir. 1987) (it remains with the court to determine the degree of weight to be assigned to evidence). The letter of determination noted the incidents involving other officers and concluded there is reasonable cause to believe the appellee discriminated. The Commissioner reviewing the appellants' charge, however, did not have the benefit of supplemental briefing which indicated in extraordinary detail that the appellants' conduct was more excessive than the Filipino officer's conduct. Moreover, the letter is not binding on this court and it along with the other evidence fails to demonstrate that the appellee acted with an illegal motive. Rather, the Police Department conducted an investigation and hearings were held to ensure that appellants had violated the Department's policies before disciplinary action was taken. When it was conclusively determined that appellants had engaged in prohibited conduct, they were not given harsher penalties than other officers given the egregiousness of their conduct. Appellants' argument that their dismissal was discriminatory is not based in fact and cannot be inferred from the existing evidence.

AFFIRMED