The opinion
MERRITT, Circuit Judge,
dissenting.
After a lengthy trial, District Judge Robert McRae found that numerous instances of unequal disciplinary treatment of black firemen in Memphis constitute a pattern or practice of discrimination within the fire department. Judge McRae’s conclusion is based on detailed findings of fact.
The Court has decided to re-try the facts of the case on appeal and has reached a different conclusion. Anderson v. City of Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985), explicitly prohibits reviewing courts from duplicating the factfinding role of the lower courts. The Court ignores this principle. Even worse, the Court twists reason to achieve a result which, in my judgment, can only be described as wholly illogical.
The majority acknowledges that many instances of “facially” unequal treatment in the fire department exist, as Judge McRae found. It simply concludes without reasonable explanation that they are either not “comparable” with the Jones-Boillot fight or represent “the mere occurrence of isolated sporadic discriminatory acts.”
Judge McRae found that Jones’ evidence was enough to “clearly show a cumulation of events that meets the burden of persuasion as to the existence of illegal discrimination in the Memphis Fire Department.” D.Ct. opin. at 20. In order to reverse Judge McRae’s findings based on the evidence, the majority goes so far as to hold that the very facts of the instant case showing unfair treatment of the black firefighter cannot even be considered in determining the existence of a pattern or practice of discrimination:
The district court concluded that the evidence of Jones’ and Boillot’s demotions was admissible to show the alleged pattern and practice. The interpretation of a consent decree is a matter of law reviewed de novo.... We think a more reasonable construction of the decree is that a jurisdictional prerequisite to consideration of the facts of the plaintiff’s claim is proof of the existence of an unlawful pattern and practice, exclusive of his claim. Logically, under the terms of the decree, the court’s jurisdiction to assess the comparability of challenged conduct cannot derive from a determination that the challenged conduct is comparable. Rather, Jones must first establish that the Department disparately disciplines black firefighters because of their race before he can introduce evidence of his fight with Boillot and the subsequent demotions.
Opin., pp. 297-298. No authority is cited or reason advanced for this strange proposition. The Court simply reaches its result by stating that it is not logical to consider the discrimination in this case as part of the evidence of a pattern, and then by disposing of the other pattern evidence by stating either that other instances of apparent discrimination “are sufficiently factually dissimilar to render any comparison meaningless,” opin., p. 300, or are “mere isolated sporadic discriminatory acts,” opin. p. 302. I cannot go along with this kind of reasoning. By the Court’s “logic,” one could never prove a pattern of discrimination because the last discriminatory act in the pattern does not count, while all of the previous acts are to be viewed in isolation from each other. Such an approach is inconsistent with common sense, and such a re-evaluation of the District Judge’s find *304 ings of fact is inconsistent with Bessemer City.
The majority acknowledges that the District Court found that the white firefighter started the fight and ended up getting less punishment than the black firefighter he attacked. But the majority refuses to add this instance of discrimination to the numerous other instances of apparent discrimination in the past. Through a process of reasoning that seems result-oriented to me, the Court finds that no discrimination occurred at all. Judge McRae, though, is the authoritative factfinder under the principle of Bessemer City. He found that the black firefighter was more credible than the white firefighter (D.Ct. opin. at 20), that the evidence of disparate discipline was “pervasive” (D.Ct. opin. at 17), and that “explicit racially derogatory remarks and decisions still exist disgustingly in the Fire Department,” (D.Ct. opin. at 17-18). Judge McRae’s factual analysis is far more sensible than the Court’s and demonstrates a much greater familiarity with the record and the long-standing discriminatory conditions in the Memphis Fire Department. As stated in Bessemer City,
The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.... [T]he trial on the merits should be “the ‘main event’ ... rather than a ‘tryout on the road.’ ”
470 U.S. at 574-75 , 105 S.Ct. at 1512 (citation omitted). Because the Court disregards the pattern of discrimination which this record shows and which the District Court found after a full trial on the merits, I respectfully dissent.