The city of Tulsa violated the Civil Rights Act when it retaliated against a black police captain who objected to being ordered to march in the 2010 Martin Luther King Day parade, a federal judge has ruled.
U.S. District Judge John Dowdell, in an opinion issued Thursday, found in favor of Capt. Walter Busby Jr.’s retaliation claim, calling Tulsa Police’s race-based actions “repugnant.”
“Having heard all of the evidence and considered the demeanor and credibility of the witnesses, the Court finds by a preponderance of the evidence that Busby was ordered to march in the parade, and was denied holiday leave in order to force him to march, based on his race,” Dowdell wrote in his ruling.
Dowdell ordered the city of Tulsa to purge Busby’s 2010 unfavorable performance evaluation, credit him for with 453 hours of combined vacation and sick leave he took following his reassignment to late evening shift and pay his attorney fees.
Busby did not seek any monetary damages.
However, Dowdell ruled against Busby’s discrimination claim.
“Marching in the parade and being denied a few hours of holiday leave time, which meant that he had to march in the parade while he was on duty, are not ‘adverse employment actions’ within the meaning of Title VII jurisprudence,” Dowdell wrote, referring to the Civil Rights Act of 1964.
Busby’s attorney, Louis Bullock, said he interpreted that portion of the ruling to mean the judge determined the “racial discrimination did not rise to the level that was actionable, but that it was discrimination and in a larger picture, it would be actionable.”
Indeed, Dowdell wrote in a footnote to his ruling that it was “repugnant that TPD orders of any kind would be based upon an officer’s race.”
In a statement, the city highlighted the judge’s ruling against Busby’s discrimination claim.
“The City has received Judge Dowdell’s Order and is pleased that in this Order, Judge Dowdell has found the City and its employees did not discriminate against Cpt. Busby on the basis of his race,” the statement said.
The statement also said the 453 hours of combined vacation and sick leave granted by the judge were less than half of the 1,111 total hours the suit had sought.
In 2011, Busby sued the city of Tulsa, Police Chief Chuck Jordan and two other superior officers in Tulsa federal court after he was ordered to march in the MLK Day parade.
Busby was the only police captain ordered to march in the parade. Two other white captains in Busby’s division volunteered to march in the parade, while another white captain was allowed to take holiday leave during the parade.
After calling the order “illegal” in a memo to a supervisor, Busby marched in the parade. But he claimed his subsequent lowest-ever performance evaluation rating and reassignment to a late evening shift were retaliation for objecting to being ordered to march with the TPD.
In his lawsuit, Busby, now a 37-year veteran on the force, claimed his then superior, Maj. Walter Evans, ordered him to march in the 2010 MLK Day parade and later denied Busby’s request to take time off work during the march.
“He said he didn’t want to march with them,” Evans said during a three-day bench trial before Dowdell in December 2015.
Evans, who is also black, denied that the order was race-based. However, Evans, in a memo to Busby regarding his decision, indicated he was “embarrassed that few African American officers participate in Department-sponsored ceremonies” including the MLK Day parade.
“The fact that we both share the same race as Dr. King and that the parade is held in the African American community is consequential,” Evans continued in his memo. Evans, who has retired from the force, later claimed he meant to type “coincidental,“ rather than “consequential.”
Dowdell ruled that Evans’s subsequent actions were in retaliation for Busby’s allegations of discrimination.
“Evans denied that he made that decision out of anger or that he did so to retaliate against Busby,” Dowdell continued, “However, Evans acknowledged that, at the time he decided to move Busby to fourth shift, Evans felt ‘hurt and disappointment’ because of Busby’s claim of racial discrimination.”
Busby could not be reached for comment.
In prior testimony, Busby said he has been on the parade’s citizen organizing committee and had, at times, marched in the parade.
“He had never marched in the parade as a member of the TPD, and he did not want to march with the TPD in the parade, because he did not think that the TPD had made sufficient progress in areas regarding race relations,” Dowdell wrote in his ruling, citing trial testimony.
Bullock said that his client has a long history of “objecting to the way that African American citizens and other people of color are treated in this city and the city reacting to that in a very personal way.”
Evans and Busby were members of the Black Officers Coalition, a group of Tulsa police officers described as a fraternal organization for black officers. The organization sued the city of Tulsa in 1994 over what it claimed were discriminatory practices. Busby was the lead plaintiff in the case during a time he was president of the organization. The lawsuit was settled in 2002.
“This time they clearly they went too far in retaliating against him for objecting to the way that they are treating people,” Bullock said.
Bullock said the police department has made “some” improvement in race relations in recent years.
“But the hill that they still have to climb is a tall hill and it’s very steep,” Bullock said. “So, I think it can mislead people to spend too much time on progress.
“I don’t want to dismiss it, but there’s a great deal to be done in this city to address the injustice that African Americans on the police force and African Americans who live in the community and have to deal with the police force have to deal with. And I think too little attention is being spent on that.”