Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81 C 1407--Robert W. Warren, Judge.
Cudahy and Ripple, Circuit Judges, and Will, Senior District Judge.*fn*
WILL, Senior District Judge.
In this case, we must decide whether the district court's factual findings are clearly erroneous. The plaintiff, Beverly J. Ratliff, is a single black woman who was discharged from her job as a probationary police officer in the City of Milwaukee on August 10, 1979, nine and one-half months after she was hired and five months after she graduated from the Milwaukee Police Academy.
Ratliff brought this action asserting five independent but related causes of action. The plaintiff maintains that she was fired from her job because of her race or sex in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-2000e-17. She makes four additional constitutional and conspiracy claims, the first three of which are remedial under 42 U.S.C. § 1983 and the indemnification principle of Wis. Stat. § 895.46: (1) that defendants fired her without an adequate hearing, depriving her of a liberty or property interest in her job without due process of law; (2) that defendants intentionally discriminated against her on account of her race, denying her the equal protection of the laws; and (3) that defendants conspired to fire her in retaliation for reporting an incident of police brutality to her supervisors and resisting efforts to cover it up, in violation of her First and Fourteenth Amendments right to free expression. Ratliff testified that she saw Police Officer William Fadrowski use unnecessary force when he beat a citizen, Ever K. Ward, during the course of Ward's arrest. The incident occurred during Ratliff's field training at the Fifth District. In addition, Ratliff makes a claim for damages under 42 U.S.C. § 1985(2). She contends that the defendants fired her because she first reported and then resisted attempts to cover up the beating of Ever Ward, which constitutes a conspiracy to obstruct justice with the intent to deprive Ratliff of the equal protection of the laws.
The district court found that Ratliff was terminated because of her poor performance on the job, not because the defendants intentionally discriminated against her on account of her sex*fn1 or race, and not because of her conduct in reporting and then resisting efforts to cover up alleged police brutality. Based on extensive findings of fact and conclusions of law, the district court dismissed all claims. Ratliff v. City of Milwaukee, 608 F. Supp. 1109 (E.D. Wis. 1985). We affirm.
On her third attempt, Ratliff successfully passed all of the prerequisites for becoming a police trainee. She began her employment with the Milwaukee Police Department as a trainee in a 20 week course at the Milwaukee Police Academy on October 30, 1978. In the latter part of February, 1979, just prior to her graduation from the Academy, Ratliff participated in two weeks of field training in the Fifth District. After her graduation from the Academy on March 2, 1979, Ratliff was assigned to the Third District, third shift, as a probationary employee. Her probation period was to extend through October 29, 1979, but she was terminated on August 10, 1979.
At the Police Academy, Captain Raymond Beste (a defendant) was the commanding officer, and Sergeant Charles Figer (also a defendant) was responsible for teaching the trainees how to write reports. In written and oral evaluations of the plaintiff both Captain Beste and Sergeant Figer, as well as others at the Academy, were critical of Ratliff's ability to perform as a police officer. She had extreme difficulty writing complete, clear and understandable reports, and had trouble with spelling, word usage and verb tenses. Though she graduated from the Academy, both Captain Beste and Sergeant Figer had continuing reservations about her ability to write police reports.
In the final evaluation, Figer noted that she had made a concentrated effort to improve, but he felt that "reports will continue to give her a great deal of trouble. It will be necessary for her to continue her extra efforts to improve." (Plaintiff's Ex. 20; 608 F. Supp. at 1116). Captain Beste noted that Ratliff had "very marginal" ability to write reports, but that she had "displayed a great deal of extra effort in attempting to improve. For this reason we have withheld a recommendation pending her performance during her probationary period." (Plaintiff's Ex. 20; 608 F. Supp. at 1116). Since those ultimately responsible for the decision to terminate Ratliff reviewed evaluations of the plaintiff and the reports from the Academy, and since Ratliff has accused Beste and Figer of making racist comments to her, we must determine whether the district court clearly erred in determining that Beste and Figer were not motivated by race discrimination.
During her two weeks of field training at the Fifth District, Philip Eccher was the field training sergeant and David Richardson was the field training officer primarily responsible for Ratliff's training. It was during this period that Ratliff allegedly witnessed police officer William Fadrowski beat Ever Ward. She claims that Richardson and Eccher made her change her report of the incident, and that her resistance to complying with their orders led ultimately to her termination. The district court determined that the Third District officers who were responsible for deciding to terminate Ratliff had no knowledge of her involvement in the Ever Ward incident prior to her termination. We must determine whether this finding is clearly erroneous as well.
After her graduation from the Academy, Ratliff was assigned to the Third District. Captain Joseph Kalivoda was the commanding officer, and Lieutenant Edward Kondracki was the third shift commander. Her sergeant-supervisors at the Third District included defendant Edmund Majkowski, as well as Anton Brinza, and David Witkiewicz. Ratliff was assigned to the third shift as a jeep checker, responsible for parking and traffic violations and, like other police officers, for writing police reports and for maintaining contact with citizens she encountered on the street through field interviews.
When the first monthly reports on probationary employees were filed at the end of March 1979, it became apparent to Lieutenant Kondracki and Captain Kalivoda that Ratliff was having extreme difficulty meeting the standards required of police officers, especially in the area of report writing. Captain Kalivoda ordered Lieutenant Kondracki to keep track of Ratliff's shortcomings and to give her additional training. Lieutenant Kondracki instructed Sergeant Brinza to spend as much time as possible with Ratliff giving her remedial training in an effort to upgrade her report writing. Transcript of 2/8/83 at 23. By the end of July, 1979, Ratliff had not shown sufficient improvement. Captain Kalivoda instructed Lieutenant Kondracki to take a statement from Ratliff and to go over with her the items which Kondracki had collected in her file as well as those items which Kondracki received from the Academy. Captain Kalivoda then prepared a report recommending that Ratliff be charged with unsatisfactory performance as a probationary employee. Based on that recommendation, Inspector Ziarnik made a recommendation to Chief Breier, who instructed the Inspector to prepare formal charges to be submitted to a Board of Inquiry. The Board recommended by a vote of 3 to 2 that Ratliff be terminated. Chief Breier fired Ratliff that same day.
Ratliff claims that both Captain Kalivoda and Lieutenant Kondracki recommended that she be terminated, in part, because of her race. She testified that they both made racist remarks to her and that Lieutenant Kondracki harassed her unmercifully during her stay at the Third District. Alternatively, she argues that they knew of her involvement in the Ever Ward incident, and that she was fired for reporting the alleged police brutality to her supervisors and for resisting the alleged cover up of that incident. We must determine, then, whether the district court clearly erred in finding that Kondracki and Kalivoda were not motivated by racial animus, and that they did not know of the Ever Ward incident until after Ratliff was fired.
The District Court's Factual Findings Are Not Clearly Erroneous
Plaintiff's case, as the district court points out, depends upon the court "believing her version of several incidents which she recalled as opposed to the testimony of defense witnesses." 608 F. Supp. at 1121. The court explained in detail why it believed defense witnesses rather than plaintiff on all of the crucial testimony. The defendant's case, was a "long and well documented account of the plaintiff's shortcomings as a police trainee and probationary officer." Id. at 1126.
Plaintiff's equal protection claim, like her Title VII disparate treatment claim, depends upon the court believing her testimony rather than that of defense witnesses. Ratliff claims that proof of intentional discrimination against her on account of her race*fn2 can be found in her account of the remarks made to her and the treatment given to her by Captain Beste and Sergeant Figer at the Police Academy, and by Captain Kalivoda, Lieutenant Kondracki and Sergeant Majkowski at the Third District during her probationary period.
Likewise, Ratliff's conspiracy claims depend upon the court crediting her testimony and that of Officer Morris over that of defense witnesses. Ratliff asserts that Sergeant Figer from the Police Academy, and Captain Kalivoda and Lieutenant Kondracki from the Third District conspired to terminate her for reporting that Officer Fadrowski beat Ever Ward. She claims that this conduct amounted to a conspiracy to obstruct justice in a state system because of her race, which is remediable under 42 U.S.C. § 1985(2), and that their retaliatory conduct violated her constitutional right to free expression under the First and Fourteenth Amendments, which entitles her to relief under 42 U.S.C. § 1983.
Plaintiff asks this court to reject the lower court's credibility assessments and to order a new trial so that the evidence can be re-presented, re-assessed, and re-balanced in a "fairer and more objective fashion". (Plaintiff's Brief at 23). This, we decline to do.
A. The Standard of Review
Our function is to correct errors of law, and to correct or set aside clearly erroneous findings of fact. Federal Rule of Civil Procedure 52(a) sets forth the standard governing appellate review of a district court's factual findings, including those on discriminatory intent and those on the credibility of witnesses: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Anderson v. City of Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 285-90, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982).
"A finding is 'clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948).
If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous.
Anderson, 105 S. Ct. at 1512 (citations omitted). Rule 52 demands even greater deference to factual findings based on determinations of the credibility of witnesses, "for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Id.
When a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.
Our task then is not to weigh the evidence in the record anew; instead, we must determine whether the trial judge's interpretation of the facts is implausible, illogical, internally inconsistent or contradicted by documentary or other extrinsic evidence. Id. If it is not, the trial court's findings cannot be found to be clearly erroneous. Id., accord Scandia Down Corp. v. Euroquilt Inc., 772 F.2d 1423 (7th Cir. 1985), cert. denied, 475 U.S. 1147, 106 S. Ct. 1801, 90 L. Ed. 2d 346, 229 U.S.P.Q. (BNA) 560 (1986); Andre v. The Bendix Corp., 774 F.2d 786 (7th Cir. 1985) (remanded because reviewing court was unable to identify any rational or articulated reason by which the ultimate finding of sex discrimination could be supported); Tulloss v. Near North Montessori School, Inc., 776 F.2d 150 (7th Cir. 1985).
After carefully reviewing the entire record in this case, we are not left with a definite and firm conviction that the trial court made a mistake.*fn3 The district court's account of the evidence is plausible in light of the record viewed in its entirety. The judge's decision to credit the testimony of some witnesses over that of others was not clear error. We have searched the record for any indication that the credited testimony or the trial court's account of the evidence was incoherent, internally inconsistent, implausible on its face, or contradicted by extrinsic evidence. We found no such indication, and plaintiff has not convincingly pointed to any. Thus, the trial court did not clearly err in finding that the plaintiff was discharged because of ...