Majeske, Carol v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1411 & 99-3639

Carol Majeske, et al.,

Plaintiffs-Appellants,

v.

City of Chicago,

Defendant-Appellee.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 89 C 7262--George W. Lindberg, Judge.

Argued April 21, 2000--Decided July 10, 2000

Before Bauer, Kanne, and Evans, Circuit Judges.

Bauer, Circuit Judge. The plaintiffs in this

case are 83 white police officers who work for

the Chicago Police Department ("CPD") and sought,

but did not receive, promotions to the position

of detective. Plaintiffs sued the City of Chicago

for reverse discrimination claiming that the

CPD’s affirmative action plan violated their

rights because it resulted in the promotion of

African-Americans and Hispanics instead of them.

The case went to trial before a jury which made

factual findings by answering 56 special

interrogatories. After reviewing the jury’s

findings of fact, the district court entered

judgment in the City’s favor and found the

affirmative action plan constitutional.

Plaintiffs challenge this judgment, and in a

separate appeal consolidated with this one, ask

us to reverse the district court’s order

requiring plaintiffs to pay the City’s costs. We

affirm the district court in both cases.

I. Background

The facts of this case date back to 1989 when

the CPD administered a test to determine which

Chicago police patrol officers would be promoted

to the position of detective. The 1989 detective

test had two components-- the first was a written

job knowledge multiple choice test and the second

an oral examination. The CPD used the written

test to whittle down the number of patrol

officers that it allowed to take the oral exam.

A total of 3,392 applicants took the written

test, but a maximum of 650 individuals were

selected to take the oral exam. This number would

produce more than enough candidates to fill the

expected number of vacant detective positions.

The CPD also limited the number of people allowed

to take the oral exam due to space limitations at

the testing facility and concerns about

maintaining the secrecy of the test questions.

After reviewing the results of the written

exam, the CPD concluded that advancing applicants

based solely on ranking in the written test would

significantly reduce the number of African-

American and Hispanic applicants eligible for

promotion to detective. Believing that this would

expose it to liability for discriminating against

blacks and Hispanics, the CPD developed a plan to

increase the number of minorities promoted to

detective. The CPD divided all of the candidates

into three groups--white, African-American, and

Hispanic. The CPD then invited the individuals

that scored in the top 17% on the written test

from each group to take the oral exam. This

approach resulted in different cut-off scores for

members of each group. The cut-off score for

whites was 82, while Hispanic applicants advanced

to the oral exam if they scored 79 and African-

American candidates advanced if they scored a 73

or higher. Using this approach, the CPD allowed

619 applicants to take the oral examination.

On June 24, 1989, the CPD administered the oral

component of the detective test to the 619

candidates and determined final scores by

combining the written and oral scores and

weighting the two scores equally. The Department

used these final scores to create a list of

applicants that the CPD determined were eligible

for promotion to detective ("the eligibility

list"). The eligibility list ranked the

individuals based on their final composite score.

More than a year after administering the oral

test and creating the eligibility list, the CPD

promoted 64 officers to detective in August 1990.

The top 42 people on the eligibility list were

promoted to detective in rank order from the

list, but the other 22 promotions were made out

of rank order and were given to the 18 highest

scoring African-American and 4 highest scoring

Hispanic candidates. In addition to these 64

promotions, the CPD also promoted 26 patrol

officers based solely on merit.

The Fraternal Order of Police ("FOP") filed

grievances on behalf of patrol officers who had

not been promoted, claiming that the out-of-rank

and merit promotions violated the collective

bargaining agreement between the CPD and the FOP.

On October 31, 1991, an arbitrator found that the

out-of-rank detective promotions given to the

African-American and Hispanic officers violated

the collective bargaining agreement, but that the

merit-based promotions did not. In response to

the arbitration, the CPD made 37 additional

detective promotions on March 13, 1992. The

Department made these additional promotions in

rank order from the eligibility list and this

resulted in the top 90 candidates from that list

having all been promoted to detective.

Plaintiffs filed a two-count complaint in the

district court against the City of Chicago

claiming that the CPD’s promotion of African-

Americans and Hispanics out of rank order

violated their rights under the Equal Protection

Clause of the Fourteenth Amendment, actionable

under 42 U.S.C. sec. 1983. Plaintiffs also

asserted a supplemental claim that the promotions

violated the Chicago Municipal Code. Before

trial, the City stipulated that race and national

origin were factors in the promotions resulting

from the 1989 detective tests, but argued that

the CPD’s affirmative action plan was

nevertheless constitutional. Based on this

admission, the parties agreed to divide the trial

into three phases. Phase one of the trial was

limited to the question of whether the CPD’s

affirmative action plan was constitutional. The

plaintiffs agreed that if they lost the first

phase of the trial, they would not pursue the

next two phases which were to address the merit

promotions and damages.

As it turned out, the plaintiffs did lose phase

one of the trial. After hearing all of the

evidence during a lengthy trial, a jury answered

56 special interrogatories--the overwhelming

majority of which were answered in the City’s

favor. Judge Lindberg reviewed the jury’s answers

and entered judgment for the City on plaintiffs’

equal protection claim. The district court also

denied plaintiffs’ post-trial motions, dismissed

plaintiffs’ other claims pursuant to the

agreement, and entered an order requiring

plaintiffs to pay the City’s bill of costs.

Plaintiffs now appeal the judgment against them

on their equal protection claim and the order

that they pay the City’s costs.

II. Analysis

Because this case concerns actions by a local

government that were admittedly influenced by

race and national origin,/1 we must apply strict

scrutiny when reviewing the City’s affirmative

action plan. See Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 222 (1995); Billish v. City

of Chicago, 989 F.2d 890, 893 (7th Cir. 1993) (en

banc). To survive strict scrutiny, a race-based

classification must promote a compelling

governmental interest. See Contractors Ass’n of

E. Pa., Inc. v. City of Philadelphia, 91 F.3d

586, 596 (3d Cir. 1996); Wittmer v. Peters, 87

F.3d 916, 918-19 (7th Cir. 1996). It is well-

settled law in this Circuit that a governmental

agency has a compelling interest in remedying its

previous discrimination and the agency may use

racial preferencing to rectify that past conduct.

See McNamara v. City of Chicago, 138 F.3d 1219,

1221 (7th Cir. 1998); People Who Care v. Rockford

Bd. of Educ., 111 F.3d 528, 535 (7th Cir. 1997);

Wittmer, 87 F.3d at 918; Billish, 989 F.2d at

893; Milwaukee Cty. Pavers Assoc. v. Fielder, 922

F.2d 419, 421 (7th Cir. 1991). However, the

government must show real evidence of past

discrimination and cannot rely on conjecture.

McNamara, 138 F.3d at 1222.

In addition to showing hard proof of a

compelling interest, strict scrutiny requires the

government to come forward with evidence that its

affirmative action plan is narrowly tailored.

Adarand, 515 U.S. at 235. An affirmative action

plan is narrowly tailored if, as a practical

matter, "it discriminates against whites as

little as possible consistent with effective

remediation." McNamara, 138 F.3d at 1222. Once

the governmental entity has shown acceptable

proof of a compelling interest in remedying past

discrimination and illustrated that its plan is

narrowly tailored to achieve this goal, the party

challenging the affirmative action plan bears the

ultimate burden of proving that the plan is

unconstitutional. Aiken v. City of Memphis, 37

F.3d 1155, 1162 (6th Cir. 1994); Concrete Works

of Colo., Inc. v. City and Cty. of Denver, 36

F.3d 1513, 1521 (10th Cir. 1994).

Whether there is enough evidence to support a

finding of a compelling governmental interest and

thereby justify a race-conscious action is a

question of law that we review de novo.

Contractors Ass’n of E. Pa., 91 F.3d at 596;

Concrete Works of Colorado, 36 F.3d at 1522.

Similarly, we apply plenary review to the issue

of whether the City’s affirmative action plan was

narrowly tailored. Contractors Ass’n of E. Pa.,

91 F.3d at 596. Finally, since the City prevailed

at trial, we will view the facts in the light

most favorable to the City and draw all

reasonable inferences in its favor. See McNamara,

138 F.3d at 1223.

A. Compelling Governmental Interest

During trial, the City presented persuasive

statistical evidence that past discrimination by

the CPD in the hiring and promotion of African-

American and Hispanic police officers reduced the

number of black and Hispanic detectives on the

police force in 1989. Rather than restate the

extensive statistical data presented at trial, we

will simply summarize the highlights of that

evidence. Dr. Charles Mann, who qualified as an

expert in statistics and the statistical analysis

of employment matters, testified that he examined

the CPD’s racial composition, hiring, and

promotion practices from 1950 through 1991. Using

the total number of blacks and Hispanics in the

available work force, as well as the number of

blacks and Hispanics in the patrol officers’

ranks at the CPD, Dr. Mann’s study showed that

the CPD’s past hiring of African-Americans and

Hispanics was substantially lower than it

statistically would have been indicated. Dr. Mann

testified that past promotions of African-

Americans and Hispanics to detective were also

substantially below what statistical analysis

predicted. Dr. Mann created a statistical model

to predict the expected number of African-

American and Hispanic detectives there would have

been in the CPD absent past discrimination. Based

on this model, Dr. Mann calculated that in 1989

there should have been 221 African-American

detectives, but there were only 57. Similarly,

Dr. Mann testified that under his analysis there

should have been approximately 43 Hispanic

detectives, but a count revealed there were only

9. Dr. Mann testified that the low number of

black and Hispanic detectives was caused by the

CPD’s past discrimination in hiring and promotion

of these two groups.

The jury also heard testimony from several

minority witnesses who told of past

discrimination they experienced while working for

the CPD. These individuals testified about the

CPD’s past use of pretextual medical excuses such

as flat feet and heart murmurs to disqualify

African-Americans from becoming police officers.

The jury learned about the CPD’s past use of

invalid height and weight requirements to exclude

Hispanic applicants from joining the police

force. In the event that the CPD did hire an

African-American, those officers were assigned

exclusively to African-American neighborhoods and

were forbidden from patrolling white

neighborhoods or arresting white suspects.

African-American officers received the most

menial jobs even though they were trained to

perform tasks involving much higher degrees of

responsibility. For example, one black officer

trained to investigate traffic accidents was

relegated to directing traffic and another black

patrol officer who was qualified for desk duty

was assigned to starting cars. African-American

officers received artificially low efficiency

ratings compared to their white colleagues and

were frequently transferred without notice.

African-American employees of the CPD also told

the jury about the climate of racial hostility

and segregation they endured on the job. The

washroom walls were covered with offensive,

racist, and threatening graffiti, and CPD

supervisors took no action to correct the

problem.

After hearing the statistical and anecdotal

evidence of discrimination, the jury was given a

special verdict form pursuant to Rule 49(a) of

the Federal Rules of Civil Procedure. The verdict

form contained 56 questions, of which the jury

answered "yes" to the following critical

interrogatories:

Did the City present evidence to support its

claim that, in the decades prior to the 1989

detective examination, black police officers were

subject to intentional, unfavorable treatment in

assignments (for example, segregated beats,

restricted duties, and unfair efficiencies)?

Did the City present evidence to support its

claim that, in the decades prior to the 1989

detective examination, black and Hispanic police

officers were subject to intentional, unfavorable

treatment in hiring (for example, in the use of

medical and entrance qualifications)?

Did the City present evidence to support its

claim that, in the decades prior to the 1989

detective examination, supervisors (for example,

sergeants, lieutenants, commanders etc.) in the

Police Department acted in ways that were hostile

to black and Hispanic police officers?

Did the City present evidence to support its

claim that, in the decades prior to the 1989

detective examination, the Police Department

tolerated acts of hostility directed towards

black and Hispanic police officers?

Did the City present evidence to support its

claim that in 1990 the percent of black and

Hispanic officers in the detective rank was

significantly lower than the percent of black and

Hispanic officers in the patrol officer rank?

Did the City present evidence to support its

claim that it was very unlikely that there would

have been as few black and Hispanic detectives in

1990 if blacks and Hispanics had been hired onto

the police force and promoted to detective in the

same manner as whites?

Did the City present evidence to support its

claim that there would have been at least 18 more

black detective and 4 more Hispanic detectives in

1990 if blacks and Hispanics had been hired onto

the police force and promoted to detective in the

same manner as whites?

Did the City present evidence to support its

belief that the under representation of black and

Hispanic detectives was due, at least in part, to

the Police Department’s prior unfavorable

treatment of black and Hispanic officers or

persons?

Did the City present evidence to support its

claim that use of three different cut-scores

helped to address the lingering effects of the

Police Department’s prior discriminatory

practices by providing an opportunity for a

greater number of black and Hispanic officers to

compete for a spot as detective?

Along with each of these questions, the verdict

form posed a question asking the jury whether the

plaintiffs had proved the opposite proposition by

a preponderance of the evidence. In response to

each of those questions, the jury said "no."

Based on the evidence presented at trial and

the jury’s factual findings, we agree with the

district court that there was sufficient proof of

past discrimination by the City to warrant the

affirmative action plan in this case. The

statistical proof revealed that past

discrimination significantly lowered the number

of African-Americans and Hispanics that were

promoted to detective through the years.

Similarly, the jury heard extensive testimony

from former minority members of the CPD about the

discriminatory practices the CPD used to keep

blacks and Hispanics from being hired into the

department; and, if a minority did manage to get

a job, how they were prevented from advancing

within the CPD. We have previously held that this

combination of persuasive statistical data and

anecdotal evidence adequately establishes a

compelling governmental interest that justifies

an affirmative action plan, see McNamara, 138

F.3d at 1223-24, and we do so again in this case.

The only credible argument plaintiffs advance to

suggest that there was not enough evidence of

past discrimination to warrant the affirmative

action plan is based on two answers the jury gave

to special interrogatories. Specifically, the

jury answered "no" to the following two

questions:

Did the City present evidence to support its

claim that, in the decades prior to the 1989

detective examination, black police officers were

subject to intentional, unfavorable treatment in

assignments (for example, segregated beats,

restricted duties, and unfair efficiencies) and

that this caused black police officers to be

excluded from the opportunity to become

detectives?

Did the City present evidence to support its

claim that, in the decades prior to the 1989

detective examination, supervisors (for example,

sergeants, lieutenants, commanders etc.) in the

Police Department acted in ways that were hostile

to black and Hispanic police officers and that

this caused black and Hispanic officers to be

excluded from the opportunity to become

detectives?

According to plaintiffs, the negative responses

to these two questions show that the jury

rejected the City’s evidence that past

discrimination was the reason for the unusually

low number of African-American and Hispanic

detectives.

We are not persuaded by plaintiffs’ argument.

The most compelling reason to reject this

argument is that, in other questions, the jury

specifically said that past discrimination had

reduced the number of African-American and

Hispanic detectives at the CPD. The jury

responded "yes" to the following three questions:

Did the City present evidence to support its

claim that it was very unlikely that there would

have been as few black and Hispanic detectives in

1990 if blacks and Hispanics had been hired onto

the police force and promoted to detective in the

same manner as whites?

Did the City present evidence to support its

claim that there would have been at least 18 more

black detective and 4 more Hispanic detectives in

1990 if blacks and Hispanics had been hired onto

the police force and promoted to detective in the

same manner as whites?

Did the City present evidence to support its

belief that the under representation of black and

Hispanic detectives was due, at least in part, to

the Police Department’s prior unfavorable

treatment of black and Hispanic officers or

persons?

The jury’s answers to these three questions are

at odds with its responses to the previous two

interrogatories. When a jury returns a special

verdict that contains contradictory answers, "we

should do what we can to save the verdict against

the spectre of inconsistency." American Gas Co.

v. B. Cianciolo, Inc., 987 F.2d 1302, 1306 (7th

Cir. 1993). Therefore, if there is a reasonable

way to interpret the jury’s verdict that resolves

the inconsistency, the verdict must be construed

in that manner. Freeman v. Chicago Park Dist.,

189 F.3d 613, 615 (7th Cir. 1999) (quoting

Gallick v. Baltimore & Ohio R.R. Co., 372 U.S.

108, 119 (1963)).

As the district court held, the inconsistency

in this verdict can be reconciled. The two

questions relied on by plaintiffs asked whether

the CPD’s prior acts of discrimination "caused

black [and Hispanic] police officers to be

excluded from the opportunity to become

detectives?" Because these questions asked

whether discrimination "caused black [and

Hispanic] police officers to be excluded" rather

than whether discrimination "caused some black

[and Hispanic] police officers to be excluded,"

the jury could have reasonably interpreted the

questions to ask whether the CPD’s prior

discrimination categorically prevented all black

and Hispanic police officers from ever having the

opportunity to become detectives. While this is

a reasonable interpretation of these questions,

this notion was contradicted by undisputed

evidence at trial which clearly demonstrated that

some blacks and Hispanics were promoted to

detective before the 1989 detective test.

Accordingly, if the jury construed these two

questions as asking whether the CPD completely

precluded minorities from becoming detectives,

then the jury’s answer of "no" is logical and

supported by the evidence.

When construed in this manner, the answers to

these two questions are entirely consistent with

the jury’s opposing responses to the later three

questions. These three questions could not be

construed as asking whether past discrimination

completely prevented all blacks and Hispanics

from ever becoming detectives. Instead, they

focused on the actual and measurable impact

previous discrimination had on the number of

African-American and Hispanic detectives on the

police force. For example, one question asked

whether previous discrimination made it "very

unlikely that there would have been as few black

and Hispanic detectives in 1990." Another asked

whether, absent the previous discrimination,

"there would have been at least 18 more black

detectives and 4 more Hispanic detectives in

1990." The other question posed the issue of

whether prior discrimination caused "the under

representation of black and Hispanic detectives."

The jury responded affirmatively to each of these

questions and therefore concluded that previous

discrimination did reduce the number of black and

Hispanic detectives at the CPD. Because the

jury’s responses to the special interrogatories

can be reasonably viewed as consistent, we reject

plaintiffs’ argument.

B. Narrow Tailoring

To determine whether an affirmative action plan

is narrowly tailored, the test we use is whether

the racially preferenced measure is "a plausible

lower-bound estimate of a shortfall in minority

representation" that is caused by past

discrimination. McNamara, 138 F.3d at 1224. The

statistical evidence credited by the jury at

trial indicates that the CPD’s affirmative action

plan was a modest solution to a history of

discrimination that caused a significant under

representation of minorities in the ranks of

detectives. In 1989, there were only 57 African-

American and 9 Hispanic detectives at the CPD.

Dr. Mann predicted that, given the appropriate

labor pool and absent past discrimination, there

would have been 221 black and 43 Hispanic

detectives on the police force in 1989. Thus, the

detective ranks at the CPD have been under

represented by 164 black detectives and 34

Hispanic detectives. Considering these alarming

disparities, the City’s promotion of only 18

blacks and 4 Hispanics to detective easily

satisfies our requirement that an affirmative

action remedy reflect a reasonable low-end

estimate of the number of minorities affected by

past discrimination.

Aside from the stark numbers, the record

contains other evidence which illustrates that

the CPD’s affirmative action plan was narrowly

tailored. See United States v. Paradise, 480 U.S.

149, 171 (1987) (plurality opinion listing

factors to consider when determining whether an

affirmative action plan is narrowly tailored).

First, the necessity for this affirmative action

was firmly rooted in both the anecdotal and

statistical evidence adduced at trial. The CPD

had discriminated in hiring and promotion against

blacks and Hispanics in the past and failure to

use out of rank promotions in 1990 would have

simply perpetuated minority under representation

caused by past discrimination. The CPD employed

this remedial measure for only one detective

promotion and the preferences had a minimal

impact on white officers. The evidence showed

that using different cut-off scores on the

written exam affected less than 5% of the white

candidates who took the test and did not prevent

any white officer from receiving a future

promotion. In fact, all 22 white officers who

were affected by the out-of-rank promotions were

later promoted to detective and received back

pay. In view of these facts and the statistical

evidence, we find ample proof to sustain the

district court’s finding that the CPD’s

affirmative action plan was narrowly tailored./2

C. Costs

After prevailing at trial, the City filed its

amended bill of costs seeking $53,302 in costs

but plaintiffs contested that amount and filed a

motion to review the bill of costs. The district

court reduced the amount of costs by $15,149 and

awarded the City a total of $38,153 for its

litigation costs. Plaintiffs now challenge the

district judge’s order. Two of plaintiffs’

arguments merit our attention.

Rule 54(d) of the Federal Rules of Civil

Procedure provides that "costs other than

attorney’s fees shall be allowed as of course to

the prevailing party unless the court otherwise

directs." Taxing costs against a losing party

requires two inquiries: (1) whether the cost

imposed on the losing party is recoverable and

(2) if so, whether the amount assessed for that

item was reasonable. See Weeks v. Samsung Heavy

Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.

1997). "[W]e review carefully whether an expense

is recoverable, but when we determine that it is,

we defer to the district court, which is in the

best position to determine the reasonableness of

the cost." SK Hand Tool Corp. v. Dresser Indus.,

Inc., 852 F.2d 936, 943 (7th Cir. 1988). If there

is statutory authority for taxing a specific

cost, "we will not overturn a district court’s

decision that the cost was necessary to the

litigation or its determination of what amount is

reasonable absent a showing of clear abuse of

discretion." Weeks, 126 F.3d at 945. We review an

award of costs bearing in mind that there is a

heavy presumption in favor of awarding costs to

the prevailing party. See M.T. Bonk Co. v. Milton

Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991);

Congregation of the Passion, Holy Cross Province

v. Touch, Ross & Co., 854 F.2d 219, 222 (7th Cir.

1988).

Plaintiffs first contend that the district court

erroneously awarded the City more than $22,000 to

cover the costs of obtaining daily trial

transcripts and transcripts from other court

proceedings. According to plaintiffs, these costs

were not appropriate because the City obtained

the transcripts solely "for the convenience of

counsel."

A court may tax as costs the "fees of the court

reporter for all or any part of the stenographic

transcript necessarily obtained for use in the

case." 28 U.S.C. sec. 1920(2). We have long

recognized that this includes trial transcripts

and transcripts from other court proceedings

necessarily obtained for use in the case. Weeks,

126 F.3d at 945; SK Hand Tool Corp., 852 F.2d at

943-44; State of Illinois v. Sangamo Constr. Co.,

657 F.2d 855, 867 (7th Cir. 1981); Wahl v.

Carrier Mfg. Co., Inc., 511 F.2d 209, 217 (7th

Cir. 1975). While the determination of necessity

must be made in light of the facts known when the

transcript was requested, the introduction of

testimony from a transcript is not a prerequisite

for finding that it was necessary. See Cengr v.

Fusibond Piping Sys., Inc., 135 F.3d 445, 455

(7th Cir. 1998); Hudson v. Nabisco Brands, Inc.,

758 F.2d 1237, 1243 (7th Cir. 1985). And,

although "courts may not tax the costs of

transcripts . . . provided merely for the

convenience of the requesting attorney," Barber

v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993), a

transcript need not be "absolutely indispensable

in order to provide the basis of an award of

costs." Id. Whether a party obtained a transcript

out of convenience or necessity for use in the

case is a question of fact that we will not

disturb absent clear error. Callicrate v.

Farmland Indus., Inc., 139 F.3d 1336, 1340 (10th

Cir. 1998); Weeks, 126 F.3d at 945;10 James

William Moore, Moore’s Federal Practice, sec.

54.103[3][e] (3d ed. 1998).

Plaintiffs claim that the district court erred

in its factual determination that the City

obtained the transcripts necessarily for use in

the case rather than for the convenience of its

lawyers. While the district court’s order does

not explicitly find that the City obtained

transcripts for use in the case, the facts before

the trial court amply support this conclusion.

The City told the district court that it used the

transcripts to record the court’s oral rulings

before and during trial, to prepare pre-trial and

trial memoranda, to prepare direct examination

questions for its witnesses, to anticipate cross-

examination questions, to cross-examine

plaintiffs’ witnesses, to draft its post-trial

briefs, and to respond to plaintiffs’ post trial

motions. The district court must have known that

the City actually used these transcripts for the

case as the City attached hundreds of pages of

the transcripts to memoranda filed with the

district court. Because the district court was

necessarily aware of facts which illustrate that

the City obtained the transcripts for use in the

case, we find no error in the district court’s

decision to award the City its costs for trial

transcripts./3

Plaintiffs also challenge the costs levied for

the City’s out-of-town witnesses’s hotel rooms

and travel expenses. In support of this argument,

plaintiffs say that the costs imposed are ones

"which the statute does not allow." Contrary to

plaintiffs’ position, there is statutory

authorization for these costs. Collectively, 28

U.S.C. sec.sec. 1821 and 1920(3) authorize the

award of costs to reimburse witnesses for their

reasonable travel and lodging expenses. Holmes v.

Cessna Aircraft Co., 11 F.3d 63, 64-65 (5th Cir.

1994); Barber, 7 F.3d at 645; Chicago College of

Osteopathic Med. v. George A. Fuller Co., 801

F.2d 908, 910 (7th Cir. 1986). Plaintiffs’

argument on this point is therefore inaccurate.

It appears that plaintiffs probably intended to

assert that the costs taxed against them were

unreasonable, but they lose on this point, too.

The district court expressly found the costs for

these witnesses to be reasonable and the

plaintiffs have failed to show us any reason why

that determination constitutes an abuse of

discretion./4

III. Conclusion

The decisions of the district court in both

appeals are affirmed.

/1 Although the City’s actions in this case favored

African-Americans because of their race and

Hispanics because of their national origin, we

will use the term "race" to refer to both groups;

governmental preferences based on either race or

national origin are subject to the same analysis.

See Billish v. City of Chicago, 989 F.2d 890, 893

(7th Cir. 1993).

/2 We have considered the other arguments raised in

plaintiffs’ brief but find them unworthy of

discussion other than to say that we find no

reversible error in the district court’s rulings.

/3 Plaintiffs also complain that the City did not

need to obtain transcripts of the entire trial on

a daily basis, which is more expensive than

getting the transcript a few days later. This

argument fails because the City established that

it obtained the transcripts for use during the

trial. Moreover, several courts have taxed the

cost of daily transcripts where, in cases like

this one, the trial was lengthy and complex. See

Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64

(5th Cir. 1994) (per curiam); Galella v. Onassis,

487 F.2d 986, 999 (2d Cir. 1973); A.B.C. Packard,

Inc. v. General Motors Corp., 275 F.2d 63, 75

(9th Cir. 1960); United States v. Davis, 87 F.

Supp.2d 82, 88 (D.R.I. 2000); EEOC v. Sears,

Roebuck and Co., 114 F.R.D. 615, 622 (N.D. Ill.

1987).

/4 Plaintiffs also challenge the district court’s

imposition of costs for photocopies, exhibits,

and expenses related to the City’s affirmative

defenses. Having reviewed the record, we find no

error in the district court’s decision to tax

these costs. Similarly, we are not persuaded by

plaintiffs’ argument that the district court

applied an incorrect burden of proof because any

such error was harmless.