In 2002, 2004 and 2006, plaintiff Glenn Harper, a black male police sergeant with the San Jose Police Department, claimed that he applied for the position of lieutenant, but was not chosen until 2008 because of his race. Harper had been an officer with the San Jose Police Department since 1985, and was eventually promoted to the position of sergeant in 1998. Thereafter, he took four successive lieutenant examinations given by the city in 2002, 2004, 2006 and 2008. Each examination resulted in the creation of an eligibility list in which persons were ranked according to their examination scores. After Harper was not promoted from the list created from the 2004 examination, he filed a complaint of race discrimination with the California Department of Fair Employment and Housing against the police department. The Department of Fair Employment and Housing waived jurisdiction and referred the complaint to the federal Equal Employment Opportunity Commission. In 2006, Harper again took the the police department’s lieutenant promotional examination and was placed on the resulting eligibility list. However, he was not selected for the position. In July 2007, Harper informed his lieutenant in the Vice Unit that he was aware of an inappropriate romantic relationship between the lieutenant and a female officer from that Unit. The following week, Harper was transferred from the Vice Unit to Patrol. The reason given was that the female officer had lodged a harassment complaint against him. The female officer’s complaint was investigated by the San Jose Police Department’s Internal Affairs Unit, and the complaint was determined to be unfounded. In December 2008, Harper again took the lieutenant’s examination and was eventually promoted to the position of lieutenant on Feb. 15, 2009. He ultimately retired from the police department on Dec. 25, 2011. Harper, who is now in his 50s, sued the city of San Jose, the San Jose Police Department and Chief Robert Davis, who made the selections from the lieutenant eligibility lists. He alleged that the defendants actions constituted racial discrimination and retaliation. Harper claimed that he was not promoted from the 2002, 2004 and 2006 examinations because he is black. He also claimed that another reason why he wasn’t promoted from the 2006 examination was because the defendants were retaliating against him because of his complaints of racial discrimination to the Department of Fair Employment and Housing. Harper further claimed that he was transferred from the Vice Unit to Patrol in retaliation for his complaints of racial discrimination and because he confronted the lieutenant about having a romantic relationship with the female officer. The defendants denied Harper’s allegations, claiming that, pursuant to the “rule of ten,” they are allowed to select any candidate from the list of eligible candidates, regardless of position on the list. Thus, they claimed that they could hire/promote anyone within the top 10 (plus the number of positions they wish to fill) people on the list, even though Harper ranked higher than many of the others who were selected for promotion., Harper sought recovery of economic and noneconomic damages from the defendants, as well as punitive damages from the chief.