931 F.2d 764

55 Fair Empl.Prac.Cas. 1466, 56 Empl. Prac. Dec. P 40,860, 59 USLW 2772, 33 Fed. R. Evid. Serv. 760

Annie R. BUSBY, Plaintiff-Appellant, v. CITY OF ORLANDO, Frederick J. Walsh, individually and in his official capacity as Chief of the Orlando Police Department, Captain Ed Paden, individually and in his official capacity as Captain for the Orlando Police Department, Lt. Richard Noble, individually and in his official capacity as Lt. for the Orlando Police Department, Richard Mays, individually and in his official capacity as Major for Orlando Police Department, Defendants-Appellees.

No. 89-3528.

United States Court of Appeals, Eleventh Circuit.

May 17, 1991.

Homero Leon, Jr., Greater Orlando Area Legal Services, Inc., Orlando, Fla., for plaintiff-appellant.

Jeffrey G. Slater, Eubanks, Hilyard, Rumbley, Meier & Lengauer, Orlando, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and JOHNSON, Circuit Judges, and ALLGOOD^{Footnote 1} , Senior District Judge.

PER CURIAM:

Annie R. Busby appeals the decision of the district court regarding various matters in her civil rights suit against the City of Orlando, et al., which resulted in an adverse jury verdict. She claims that the defendants-appellees, sued in their individual and official capacities under 42 U.S.C. Secs. 1981, 1983, 2000e et seq. (1988), were erroneously dismissed from suit. She also claims that the district court abused its discretion in excluding several exhibits and witnesses' testimony. We find that the district court correctly granted directed verdicts for appellees Chief Frederick Walsh, Major Richard Mays, Captain Ed Paden, and Lieutenant Richard Noble in their official capacities, and correctly granted a directed verdict in favor of Walsh in his individual capacity. However, because we find that Busby's claim against Chief Walsh was not groundless or without foundation, we VACATE the district court's award of attorney's fees to Walsh. Notwithstanding our holding that the district court properly granted directed verdicts for the officially named defendants, we find that the district court's erroneous charge to the jury regarding the directed verdicts amounted to prejudicial error to Busby in her suit against the City of Orlando, and accordingly, we REVERSE. We also find that the court correctly granted directed verdicts in favor of the individually named defendants on the section 1983 first amendment claim. We find, however, that the court erroneously granted directed verdicts in favor of Paden, Mays, and Noble in their individual capacities on the section 1983 equal protection claim. We therefore REVERSE these rulings. We also REVERSE the district court's decision on the following evidentiary issues: excluding racial discrimination statistics regarding the Orlando Police Department, and a corresponding graph summarizing and explaining those statistics; excluding the expert testimony of Charles English, a psychological counselor tendered to explain those exhibits and to testify as to psychological impact on Busby; excluding black co-worker Joyce Brinson's testimony; and excluding the introduction of an Internal Affairs Report corroborating Busby's accusations regarding Paden. We AFFIRM, however, the court's evidentiary rulings regarding the testimony of co-worker Joanne Jarboe and Lieutenant Lovett, because Busby failed to perfect the record on appeal by making an appropriate proffer of the evidence. We also AFFIRM the court's exclusion of a large, disorganized collection of documents, but recognize that such documents could be admitted upon retrial of the case if properly presented. Finally, we REMAND the case for proceedings consistent with this opinion.

BACKGROUND

Plaintiff-appellant Annie Busby, a black woman, worked as an Airport Safety Officer ("ASO") for the Orlando Police Department ("OPD") from 1979 until her termination in 1986. According to the appellees, Busby was fired after she continually refused to obey a superior officer's order to sign an acknowledgement that she had read and received a document that outlined certain OPD policies and procedures. A number of events precipitated this ultimate showdown with her superiors that culminated in her termination.

In early 1985, Busby sent letters to all of the airlines at the Orlando International Airport (where she worked as an ASO) requesting the operations managers at each airline to encourage their employees to donate ten dollars each to a veterans' fund that Busby was trying to establish.^{Footnote 2} Following this solicitation, one of the airlines filed a complaint with the OPD. The internal affairs division of the OPD investigated the matter and then referred it to the State Attorney's Office because of the potentially criminal nature of her conduct. The State Attorney's Office recommended that the OPD handle the matter internally, and did not file any criminal charges. The OPD ultimately did discipline Busby for soliciting. She received a written censure.

While the internal affairs division was still investigating Busby's solicitation matter, Busby wrote a number of letters and memos criticizing various officers in the OPD. She sent a letter to the Mayor of Orlando, as well as to other public commissions around the City of Orlando and the state of Florida. According to Busby, she wrote the letters only after first consulting with her superior officer, appellee Captain Ed Paden. She testified that she had complained to Paden about several problems she perceived to exist at OPD. Also, she claimed that she had confronted Paden himself and accused him of having extramarital sexual affairs with subordinates.

Busby was disciplined with a forty-hour suspension for conducting her letter writing campaign. Major Richard Mays instructed Busby to cease making accusations in violation of departmental policies that prohibited discussing pending investigations. Additionally, appellee Lieutenant Richard Noble also ordered Busby to cease making such remarks.

Despite this, Busby began to make new complaints to persons outside of the OPD. She complained that Paden had referred to her in conversation with others as a "black bitch," and that her duty assignment, which included driving a gasoline powered golf cart, was endangering her health. She claimed that the fumes emitted from the cart had injured her. Against Busby's doctor's recommendation, appellees Noble, Paden, and Mays ordered her to continue to ride the cart. She refused to comply and was shortly thereafter charged with insubordination. In addition, she was disciplined for a second time for making criticisms to the public without investigation.

Upon receiving this second discipline, Busby indicated to her superiors that no one had explained to her the OPD's policies regarding procedures employees must follow when making complaints. Mays decided to issue a letter to Busby outlining the department's written policy regarding complaint procedure. He instructed Noble to present the letter to Busby and to order her to sign the letter as "received, read, and understood."

On July 21, 1986, Noble ordered Busby to sign the complaint procedure policy letter, pursuant to Mays's order. The letter essentially stated that before an employee may complain publicly about the OPD, the employee must first give the department the opportunity to investigate the matter internally.^{Footnote 3} Busby refused to sign the memo as "received, read, and understood," absent the advice of a Police Benevolent Association representative. Upon her refusal to sign, Noble requested that she leave his office while he consulted with Paden and Mays over the telephone. Paden, Mays, and Noble agreed that Busby's refusal to sign was insubordination, that she was not entitled to have a representative present, and that further refusal to sign was cause for termination. They decided that Noble would call her back into his office, with witnesses present, order her to sign in the presence of the witnesses, and relieve her from duty if she refused to sign. Busby again refused to sign the letter, and she was immediately relieved of duty. Mays subsequently terminated Busby. In deciding to terminate Busby's employment, Mays considered Busby's previous disciplinary history, in addition to the incident in Noble's office.

Busby filed suit in federal district court against the City of Orlando, Mays, Paden, Noble, and Orlando Police Department Chief of Police Frederick Walsh. She alleged that the appellees had violated her civil rights, and her right to free speech. The district court granted Walsh, Paden, Mays, and Noble a directed verdict for all claims against them in their individual capacities, and a directed verdict for all claims against them in their official capacities, reasoning that the official capacity claims were identical to the claim against the City of Orlando. At trial, the jury returned a verdict in favor of the City of Orlando.

Busby appeals on several grounds. She appeals the district court's granting of directed verdicts in favor of Walsh, Paden, Mays, and Noble. She also appeals the district court's decision to merge the official capacity suits into her suit against the City of Orlando directly, and claims further that the judge made a prejudicial charge to the jury when dismissing the officially-sued defendants. Finally, she appeals several evidentiary rulings by the district court. The evidentiary rulings that she appeals include, but are not limited to, the following: the exclusion of expert testimony from one of Busby's witnesses who was tendered to explain how certain racial discrimination statistics^{Footnote 4} were compiled, and to comment on the psychological impact on Busby from her experiences at the OPD; the exclusion of an internal affairs report concluding that Paden had been involved in extramarital affairs; and, the exclusion of testimony offered to prove the existence of a racially hostile environment at the OPD.

DISCUSSION

I. Civil rights claims

Busby sued Chief Walsh, Major Mays, Captain Paden, and Lieutenant Noble in both their individual and official capacities under 42 U.S.C. Sec. 1983, alleging that appellees had violated her free speech, due process, and equal protection^{Footnote 5} rights guaranteed under the first and fourteenth amendments. In addition, she sued the appellees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1988),^{Footnote 6} for racial harassment and discriminatory termination.^{Footnote 7}

A. Individual capacity liability & qualified immunity

When a plaintiff sues a municipal officer in the officer's individual capacity for alleged civil rights violations, the plaintiff seeks money damages directly from the individual officer. See Kentucky v. Graham,  473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). If sued "individually," a municipal officer may raise an affirmative defense of good faith, or "qualified," immunity. See Kentucky v. Graham, 473 U.S. at 166-67, 105 S.Ct. at 3105-06. Hence, in the instant matter, the pretrial stipulation declared that "[t]he parties agree that Defendants, FREDERICK J. WALSH, ED PADEN, RICHARD NOBLE and RICHARD MAYS, enjoy a qualified immunity for those claims being pursued against them under provisions of the Civil Rights Act of 1964 [i.e., Title VII]." However, with respect to suits under Title VII, we agree with the Fifth Circuit, which determined that no qualified immunity exists for individuals sued under Title VII. Harvey v. Blake,  913 F.2d 226, 227 (5th Cir.1990). No immunity from such actions exists because such claims must be made against the municipal officer in his official capacity, not in his individual capacity. See id. at 227-28. "Because the doctrine of qualified immunity protects a public official from liability for money damages in [his or] her individual capacity only, the doctrine is inapplicable in the Title VII context." Id. at 228. Therefore, a qualified immunity analysis is unnecessary under Title VII.

Individual capacity suits under Title VII are similarly inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act. See Clanton v. Orleans Parish School Bd.,  649 F.2d 1084, 1099 & n. 19 (5th Cir.1981)^{Footnote 8} ; see also 42 U.S.C. Sec. 2000e(b) (1988) (definition of "employer"); 42 U.S.C. Sec. 2000e-2 (1988) (violation for "employer" to discriminate); 42 U.S.C. Sec. 2000e-5(g) (1988) (relief for violation of Sec. 2000e-2). We think the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly.

The district court's order was unclear with respect to which claims were being dismissed by directed verdict. To the extent that the district court's directed verdict in favor of Walsh, Mays, Paden, and Noble in their individual capacities reached the Title VII claims, we AFFIRM. Such claims ought to be considered as made against the City.

When the defense of qualified immunity is available to a particular defendant in a section 1983 context, a plaintiff must establish a lack of objective good faith to avoid a directed verdict in favor of the defendant. See Barnett v. Housing Auth.,  707 F.2d 1571, 1582 (11th Cir.1983); cf. Harlow v. Fitzgerald,  457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (summary judgment); Schopler v. Bliss,  903 F.2d 1373, 1380 (11th Cir.1990) (motion to dismiss). In this case, all the parties stipulated that the individually-sued defendants were entitled to a qualified immunity. If Busby has produced evidence showing that the appellees acted outside the scope of the qualified immunity, i.e., did not act in "good faith," then the appellees are not entitled to a directed verdict. Cf., e.g., Peppers v. Coates,  887 F.2d 1493, 1498 (11th Cir.1989) (summary judgment awarded for failure to rebut "good faith").

The test for good faith is objective. "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2740. This standard shields all government officials except those who either are plainly incompetent or who knowingly violate the law. Nicholson v. Georgia Dep't of Human Resources,  918 F.2d 145, 146 (11th Cir.1990) (citing Malley v. Briggs,  475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Stewart v. Baldwin County Bd. of Educ.,  908 F.2d 1499, 1503 (11th Cir.1990)). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton,  483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 818, 819, 102 S.Ct. at 2738, 2739) (citation omitted). As long as the defendant could reasonably have thought his or her action to be consistent with the rights he or she is alleged to have violated, the defendant is entitled to immunity. Id. 483 U.S. at 638, 107 S.Ct. at 3038. The plaintiff has the burden of showing that the defendant violated clearly established constitutional rights. Zeigler v. Jackson,  716 F.2d 847, 849 (11th Cir.1983); see Saldana v. Garza,  684 F.2d 1159, 1163 (5th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983).

1. First amendment free speech claim

Busby alleged in Count III that appellees unconstitutionally violated her first amendment free speech rights.^{Footnote 9} She claimed that appellees fired her in retaliation for publicizing malfeasance by her supervisors, and for complaining about fumes emitted from the golf cart in which she was required to ride. Additionally, Busby claimed that Paden acted to cause her termination in order to prevent the discovery of Paden's extramarital affairs.^{Footnote 10}

The relevant question in this case is whether a reasonable OPD supervisor could have believed appellees' actions in disciplining Busby for failing to follow OPD complaint procedure to be lawful, in light of clearly established law. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3040. "[Appellees'] subjective belief[s] about [their actions] are irrelevant." Id. In determining whether a reasonable person would have known that appellees' actions violated the first amendment, we must examine the applicable law regarding protection of employee speech under the first amendment, enunciated by the Supreme Court in Pickering v. Board of Education,  391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and applied in Connick v. Myers,  461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Then, we must determine, in light of Pickering and Connick, whether a reasonable defendant could believe that his actions were lawful. We make this last determination in accordance with our circuit's test in Dartland v. Metropolitan Dade County,  866 F.2d 1321, 1323-24 (11th Cir.1989), for determining qualified immunity in this context.

The Supreme Court has never established a bright-line test for determining when a public employee may be disciplined in response to that employee's speech. Dartland, 866 F.2d at 1323. Instead, Pickering established a case-by-case balancing of interests test. Id. Although "a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression," Connick, 461 U.S. at 142, 103 S.Ct. at 1687, an employee's interest as a citizen in commenting on matters of public concern must be balanced against the state's interest as an employer "in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1735. Because no bright-line standard exists to put the employer on notice of a constitutional violation, this circuit has recognized that a public employer is entitled to immunity from suit unless the Pickering balance "would lead to the inevitable conclusion that the discharge of the employee was unlawful." Dartland, 866 F.2d at 1323. Accordingly, this court need not decide the precise result of applying the Pickering balancing test to Busby. See id. at 1324. Instead, we need only decide whether such a result would be so evidently in favor of protecting the employee's right to speak that reasonable officials in appellees' place "would necessarily know that the termination of [Busby] under these circumstances violated [Busby's] constitutional rights." Id.

Assuming that the matters upon which Busby commented were matters of public concern, on Busby's side of the Pickering scale is her interest in expressing her opinion on the alleged malfeasance of her superiors. On appellees' side of the scale is their interest in maintaining loyalty, discipline, good working relationships among the employees, and, in general, the OPD's reputation. See id. In this regard, appellees' case is strengthened by the fact that the OPD is a quasi-military organization. In quasi-military organizations such as law enforcement agencies, comments concerning co-workers' performance of their duties and superior officers' integrity can "directly interfere[ ] with the confidentiality, esprit de corps and efficient operation of the [police department]." Egger v. Phillips,  710 F.2d 292, 327 (7th Cir.) (Coffey, J. concurring in part), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). "[D]iscipline is a necessary component of a smoothly-operating police force. Although this necessity of discipline does not rise to the same level as required by the military, ... discipline must be maintained among police officers during periods of active duty." Williams v. Board of Regents,  629 F.2d 993, 1003 (5th Cir.1980) (citation omitted), cert. denied sub. nom., Saye v. Williams,  452 U.S. 926, 101 S.Ct. 3063, 69 L.Ed.2d 428 (1981); see Egger, 710 F.2d at 327-28 (Coffey, J., concurring in part). We agree that courts should consider and give weight to the need for maintaining a close working relationship in quasi-military organizations like police departments. See Saye v. Williams,  452 U.S. 926, 929, 101 S.Ct. 3063, 3065, 69 L.Ed.2d 428 (1981) (Rehnquist, J., dissenting from denial of certiorari); Egger, 710 F.2d at 328 (Coffey, J., concurring in part).

Appellees did not bar Busby from voicing her complaints; they merely sought to delay her access to a public forum until after the OPD's internal affairs division could investigate her complaints. We recognize that some of Busby's allegations against Paden ultimately proved true. Yet, under Pickering, it is far from clear that any of the appellees violated the first amendment in terminating Busby for her refusal to acknowledge the policy of delaying publication of acts of malfeasance until after such sensitive allegations could be investigated internally. We therefore decline to hold that appellees would inevitably have been led to conclude that their actions violated Busby's constitutional right to free speech.

Moreover, Busby's supervisors were merely seeking to enforce written OPD regulations by attempting to delay Busby's access to the public forum. To say that the supervisors should have known under Dartland that they were unconstitutionally infringing upon Busby's free speech interest would require a finding that the OPD regulations themselves are unconstitutional. Busby never challenged the constitutionality of the regulations before the trial court or this court. We therefore decline to undertake a detailed determination of the constitutionality of the regulations under Pickering. However, we reiterate our belief that quasi-military organizations have special disciplinary concerns. Quasi-military organizations, such as the OPD, generally by necessity must cast regulations in broad terms. See Vorbeck v. Schnicker,  660 F.2d 1260, 1262 (8th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982). Additionally, institutions such as the military and police have needs "which must demand a high level of discipline and duty of their members in order to function effectively for the good of all members of society." Id. at 1263. In light of the OPD's interests in maintaining loyalty, discipline, morale, and a favorable reputation with the public, we cannot say that, under Pickering, regulations that merely delay access to a public forum are so clearly unconstitutional so as to put appellees on notice that by enforcing the regulations they themselves were violating the law.^{Footnote 11} We agree with the district court's decision to grant a directed verdict in favor of Walsh, Mays, Paden, and Noble as to the free speech claim. Accordingly, we AFFIRM that portion of its opinion.

2. Racial discrimination claim

We do not, however, agree entirely with the district court's finding of immunity on the racial discrimination claim under section 1983. The district court's oral explanation of the directed verdict is not completely clear. The parties' arguments preceding the court's ruling, however, aid in our interpretation of the ruling. After Busby rested her case, the defendants argued for a directed verdict on all claims--section 1981, section 1983, and Title VII--by asserting that Busby had not presented sufficient evidence to support a prima facie case for any of the claims. The defendants also argued that the section 1983 claim based upon the alleged first amendment violation was barred on the ground of qualified immunity, citing Dartland, supra. The defendants, however, made no other argument as to qualified immunity. At the conclusion of Busby's response to the defendants' argument, the court ruled:

[W]ith regard to the individuals, from the evidence that has been presented, it seems totally irresponsible that these individuals would be exposed to individual liability and punitive damages based on the flimsy evidence that has been presented against them.

....

It was all done through the scope of their employment and they have qualified immunity in that employment.

....

The court will grant a directed verdict as to those three individuals [Noble, Mays, and Paden].

(R10:212-13). Then, after summarizing its view of the evidence against Walsh, the court stated, "[t]he court finds that Chief Walsh's involvement in this case is totally bizarre, so the court will grant a directed verdict as to Chief Walsh and assess costs and attorney fees with regard to his defense." (R10:214). It seems, from a review of these statements, taken in context, that the district court determined that the individual defendants were entitled to qualified immunity only on the section 1983 claim based on the violation of Busby's first amendment rights. The court directed the verdict on all other claims in favor of the individually named defendants on the ground that Busby had not presented evidence sufficient to establish a prima facie case.

As noted above, the Harlow standard determines the scope of qualified immunity. In contrast to Busby's first amendment claim, it is clearly established that the equal protection clause affords Busby a right to be free from racial discrimination. See, e.g., Washington v. Davis,  426 U.S. 229, 239-41, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). The defendants therefore could have made no claim of qualified immunity under Harlow to a section 1983 claim predicated upon equal protection. Though it is unclear whether the district court in fact directed a verdict in favor of the individual defendants on the ground of qualified immunity for this section 1983 claim regarding racial harassment and discrimination, such a ruling clearly would have been erroneous.

B. Section 1983 & official capacity liability

In contrast to individual capacity suits, when an officer is sued under Section 1983^{Footnote 12} in his or her official capacity, the suit is simply " 'another way of pleading an action against an entity of which an officer is an agent.' " Kentucky v. Graham, 473 U.S. at 165, 105 S.Ct. at 3105 (citing Monell v. Department of Social Servs.,  436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)). Such suits against municipal officers are therefore, in actuality, suits directly against the city that the officer represents. See id. 473 U.S. at 165-66, 105 S.Ct. at 3105; Brandon v. Holt,  469 U.S. 464, 471-72, 105 S.Ct. 873, 877-78, 83 L.Ed.2d 878 (1985); Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Farred v. Hicks,  915 F.2d 1530, 1532 (11th Cir.1990). Consequently, a plaintiff cannot rely on a respondeat superior theory to hold a municipality liable for individual actions of its officers. Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Hearn v. City of Gainesville,  688 F.2d 1328, 1334 (11th Cir.1982). "[A] municipality cannot be held liable solely because it employs a tortfeasor." Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (emphasis in original). Instead, in order to recover against a municipality, a plaintiff must establish that the alleged racial discrimination or harassment occurred pursuant to a custom or policy of the municipality. Id. at 694, 98 S.Ct. at 2037; Gilmere v. City of Atlanta,  774 F.2d 1495, 1503 (11th Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Hearn, 688 F.2d at 1334.

Because suits against a municipal officer sued in his official capacity and direct suits against municipalities are functionally equivalent, there no longer exists a need to bring official-capacity actions against local government officials, because local government units can be sued directly (provided, of course, that the public entity receives notice and an opportunity to respond). See Kentucky v. Graham, 473 U.S. at 166, 105 S.Ct. at 3105; Brandon v. Holt, 469 U.S. at 471-72, 105 S.Ct. at 877-78. In Busby's action against the City of Orlando, the district court recognized that the intended defendant was actually the City. To keep both the City and the officers sued in their official capacity as defendants in this case would have been redundant and possibly confusing to the jury. We therefore AFFIRM the district court's decision to grant a directed verdict in favor of Walsh, Mays, Paden, and Noble as officially named defendants, because the City of Orlando remained as a defendant.

However, we find that the court's instruction at the close of Busby's case regarding the dismissal of the official-capacity defendants amounted to prejudicial error in the suit against the sole remaining defendant, the City of Orlando. The court made the following comment to the jury:

Ladies and gentlemen, the plaintiff has rested her case which means she was [sic] presented all of her evidence. While you were out, the parties presented certain motions and the court has dismissed all of the individual defendants from the case finding that all of their actions were legal actions within the scope of their employment so that the only remaining defendant for your consideration is the City of Orlando.

(R10:214-15) (emphasis added).

In assessing a claim that the court erred in instructing the jury, we must consider the jury instructions as a whole to determine whether the error, if any, was prejudicial. Johnson v. Bryant,  671 F.2d 1276, 1280 (11th Cir.1982). If the instructions, taken together, properly express the law applicable to the case, no reversible error has occurred, even if an isolated clause may be inaccurate, ambiguous, incomplete, or otherwise subject to criticism. Id.; see Gregg v. U.S. Indus., Inc.,  887 F.2d 1462, 1472 (11th Cir.1989); Merchants Nat. Bank of Mobile v. United States,  878 F.2d 1382, 1388 (11th Cir.1989); Somer v. Johnson,  704 F.2d 1473, 1477-78 (11th Cir.1983). However, where "there is uncertainty as to whether the jury was actually misled, the [district court's] erroneous instruction cannot be ruled harmless." Miller v. Universal City Studios,  650 F.2d 1365, 1372 (5th Cir.1981).

The court's characterization of the individual defendants' actions as "legal actions" could only have left the jury with the impression that the judge had already determined that these individuals had done no wrong. Although the jury was later instructed on the legal standards to apply in reaching its verdict, the later instruction did not directly address the prior characterization of the individual defendants' actions as "legal." We cannot therefore be absolutely certain that the jury was not misguided by the district court's words and actions. Consequently, we hold that the district court's statements constituted prejudicial error.

C. Directed verdict on Title VII, section 1983 racial discrimination--insufficiency of evidence

A Title VII plaintiff has the initial burden to establish a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green,  411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Subsequently, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the employer's actions.^{Footnote 13} Id. Appellants asserted a defense of "business necessity" as their nondiscriminatory reason for firing Busby. However, a defendant may not assert a business necessity justification for its actions merely as a pretext for discriminatory conduct. See id. at 804, 93 S.Ct. at 1825. Nevertheless, in order to prevail over a defendant who has raised a "business necessity" defense, a plaintiff must prove that the nondiscriminatory reason for termination offered by the defendant was merely pretextual or discriminatorily applied. See id. at 806, 93 S.Ct. at 1826.

According to our circuit's precedent:

Section 1983 actions challenging racial discrimination under the equal protection clause and Title VII disparate treatment cases both require a showing of discriminatory motive, and the nature of a prima facie showing is the same in either case: "... simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations."

Lee v. Conecuh County Bd. of Educ.,  634 F.2d 959, 962 (5th Cir.1981) (quoting Furnco Constr. Corp. v. Waters,  438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57 L.Ed.2d 957 (1978)). Moreover, the McDonnell Douglas formulation of the parties' burdens applies to section 1983 racial discrimination claims as well as to Title VII claims. Id. at 963 (applying McDonnell Douglas to section 1983 claims).

The defendant City of Orlando articulated a legitimate, nondiscriminatory reason for Busby's firing, claiming that she was insubordinate. In support of its assertion, defendant offered evidence that Busby had refused to follow the department's policy of reporting allegations of misconduct to internal affairs prior to any disclosure to the public. It also showed that she had refused to follow orders surrounding her notice of that policy. However, despite the nondiscriminatory reason offered by defendant, the court erred in finding that Busby had not provided sufficient evidence of pretext to avoid a directed verdict against her.

In reviewing the district court's grant of a directed verdict on the basis of insufficient evidence, we "should consider all of the evidence ... in the light and with all reasonable inferences most favorable to the party opposed to the motion." Boeing Co. v. Shipman,  411 F.2d 365, 374 (5th Cir.1969) (en banc). If substantial evidence opposed to the motion exists, i.e., "evidence of such quality and weight that reasonable and fair-minded [persons] in the exercise of impartial judgment might reach different conclusions," a directed verdict is improper. Id. A directed verdict is proper only "[i]f the facts and inferences [viewed in favor of the party opposing a motion for directed verdict] point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at contrary verdict." Id. We believe that a review of the record shows that Busby did offer substantial evidence to show that the defendants Paden, Mays, Noble, and the City of Orlando by its employees, discriminatorily applied sanctions against Busby based upon her race.^{Footnote 14}

In reaching this determination, it is necessary to look at the entire series of investigations into Busby's conduct prior to her termination. A review of these investigations reveals that the incidents could reasonably be perceived to be related. The importance of showing a relation among the incidents is crucial to Busby's ability to prove that the OPD discriminatorily applied disciplinary measures to her.

The City of Orlando has a progressive disciplinary policy; under such a policy, Busby would not likely be fired for her actions in a single isolat