Tulsa, OK – A federal judge has ordered the City of Tulsa to pay a black Tulsa Police Department (TPD) captain’s legal expenses, after he successfully sued the city for retaliating against him when he objected to being forced to march in a Martin Luther King Day parade.
The fate of Captain Walter Busby Jr.’s retaliation claim was determined by U.S. District Judge John Dowdell, who called TPD’s race-based actions “repugnant,” according to the Tulsa World.
On Friday, Dowdell also upheld a magistrate’s recommendation that the city be required to pay a total of $342,046 in attorney fees and expenses incurred by Capt. Busby while the case was being litigated, the Tulsa World reported.
Capt. Busby’s lawyers said they have put over 1,000 hours of time into the case since it began in 2011.
At the time of the 2010 directive, Capt. Busby was the only captain ordered to take part in the parade.
Two other white captains volunteered to march, and a third white captain was allowed to take vacation time when the parade was scheduled to take place.
Capt. Busby said that his then-supervisor, Major Walter Evans, specifically ordered him to march in the parade, and that he denied his request to take vacation time instead of being forced to attend.
“He said he didn’t want to march,” Maj. Evans confirmed during a 2015 hearing before Dowdell, according to the Tulsa World.
Capt. Busby complied with the order, but only after he labeled the directive as “illegal” in a memo to a supervising officer.
In his lawsuit, Capt. Busby said that after he voiced his dissent, he received the lowest performance evaluation of his career. He said he was also reassigned to a less-desirable late evening shift.
Capt. Busby argued that these actions were retaliation for him having objected to Maj. Evans’ order to march in the parade.
After he issued the directive, Maj. Evans, who is also black, told Capt. Busby in a memo that he was “embarrassed that few African American officers participate in Department-sponsored ceremonies.”
“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,” Maj. Evans wrote in the memo. He later claimed that he intended to type “coincidental,“ rather than “consequential,” the Tulsa World reported.
Capt. Busby sued the city of Tulsa, TPD Chief Chuck Jordan, and two other supervisors in 2011.
In 2015, Dowdell denied the city’s motion to dismiss the lawsuit under the Civil Rights Act, The Associated Press reported.
During a bench trial in 2015, Capt. Busby testified that he had been a part of the parade organization board for over two decades, and that he typically participated in the parade with other organizers when he wasn’t on duty, according to The Tulsa World.
Maj. Evans said that Capt. Busby told him he had planned to ride in a trolley with his fellow organizers during the parade procession, but Maj. Evans told him to march with his coworkers instead.
According to Maj. Evans, Capt. Busby told him he did not want to march alongside “them,” and that he later explained he didn’t want to march with “those that didn’t speak to me,” the Tulsa World reported.
The lawsuit finally came to a close in January of 2018, when Dowdell ruled in Capt. Busby’s favor.
"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, according to the Tulsa World.
The judge ordered that Capt. Busby’s 2010 performance evaluation be purged. He also ordered that the city credit the captain for 453 hours of leave he took after being reassigned, and that they pay his legal fees.
Capt. Busby, a 38-year veteran of the force, did not seek any monetary damages in the lawsuit.
The judge did rule against the captain’s discrimination claims, however.
“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 ruled.
Capt. Busby’s lawyer, Louis Bullock, said that he believed Dowdell’s language indicated that the judge determined that 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,” the Tulsa World reported.
Dowdell also concurred that Maj. Evans’ actions after Capt. Busby’s objection were retaliatory.
“Evans denied that he made that decision out of anger or that he did so to retaliate against Busby,” the judge ruled. “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.”
The only issue yet to be resolved is the matter of Capt. Busby’s 2010 performance evaluation that was ordered to be destroyed, The Tulsa World reported.
In November of 2018, the captain’s attorneys filed a motion alleging that the city’s Human Resources Department had kept a copy of the evaluation, despite the court’s order, and asked the judge to hold the city in contempt.
The city subsequently claimed that the retention of the evaluation was the result of a miscommunication inside the human resources office, and that that they “immediately corrected” the issue when they became aware, according to The Tulsa World.
Dowdell gave the city a two-week window to file evidence proving that the evaluation has been destroyed.