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Reed v. Baxter

United States Court of Appeals for the Sixth Circuit

September 11, 1997, Argued ; January 9, 1998, Decided ; January 9, 1998, Filed

No. 96-6384


 [***2]  [*352]   MERRITT, Circuit Judge.

In this reverse discrimination case, two white firefighters appeal the dismissal of their action brought against the City of Murfreesboro, Tennessee and the city's fire chief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The plaintiffs allege and offer some evidence to show that an African-American man was promoted to the rank of captain purely on the basis of his race, without regard to the respective qualifications [**2]  of the candidates. They maintain that the District Court misapplied the law of the attorney-client privilege in two  [*353]  rulings regarding a meeting among the city attorney and other city officials. The plaintiffs contend that these rulings excluded crucial evidence that would have allowed them to prevail at trial. In response, the defendants argue that the plaintiffs have waived their right to appeal the District Court's rulings by failing to offer proof sufficient to preserve the issue for appeal. Although the plaintiffs failed to take steps that would have more clearly preserved the privilege issue for appeal, we conclude that they did enough in light of the District Court's broad rulings. The District Court's rulings rested on a misapplication of the law of the attorney-client privilege and denied plaintiffs the full opportunity to present their case at trial. Therefore, we vacate the judgment of the District Court and remand the case for further proceedings.

 [***3] I.

In 1992 the Murfreesboro Fire Department took steps to fill a captain's position left vacant when Henry Knox, a black man, was fired. The Department notified prospective candidates that it would select three [**3]  finalists for promotion to the position based on a combination of test scores, length of service, and number of state certifications. Defendant Baxter was to interview the finalists and recommend one of them to City Manager Roger Haley for the promotion.

In December 1992, the plaintiffs and others took a written test created by the Department's Training Officer, Billy Vinson. After the test was graded, Vinson transmitted to the Chief a list of the three applicants most qualified for the position based on the initial promotion criteria--plaintiff Henry Sharber, another white applicant, and an African-American candidate. Vinson then double-checked the results and determined that the list he had sent to Chief Baxter failed to include one candidate who should have ranked among the top three. Chief Baxter requested a list of the top five candidates based on the original criteria. The new list, also prepared by Vinson, included the two plaintiffs, one other white applicant, and two African-American candidates.

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134 F.3d 351 *; 1998 U.S. App. LEXIS 249 **; 1998 FED App. 0011P (6th Cir.) ***; 75 Fair Empl. Prac. Cas. (BNA) 1409; 72 Empl. Prac. Dec. (CCH) P45,161; 48 Fed. R. Evid. Serv. (Callaghan) 750

JOHN W. REED; HENRY SHARBER, Plaintiffs-Appellants, v. DAVID BAXTER, Individually; CITY OF MURFREESBORO, Defendants-Appellees.

Subsequent History:  [**1]  As Corrected February 20, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied, March 5, 1998, Reported at: 1998 U.S. App. LEXIS 4958. Certiorari Denied October 5, 1998, Reported at: 1998 U.S. LEXIS 4893.

Prior History: Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 93-00998. John T. Nixon, Chief District Judge.

Disposition: VACATED and REMANDED.


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Criminal Law & Procedure, Standards of Review, De Novo Review, General Overview, Evidence, Privileges, Attorney-Client Privilege, Elements, Civil Procedure, Preliminary Considerations, Federal & State Interrelationships, Federal Common Law, Appeals, De Novo Review, Waiver, Scope, Government Privileges