U.S. v. City of Warren, Mich.

• Decision Date: 16 March 1998
• Docket Number: Nos. 97-1024,97-1075,s. 97-1024
• Citation: 138 F.3d 1083
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1603, 73 Empl. Prac. Dec. P 45,389 UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. The CITY OF WARREN, MICHIGAN, Defendant-Appellee/Cross-Appellant, The City of Warren Police and Firefighter Civil Service Commission, Rule 19(a) Party, Defendant-Appellee (97-1024).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1083

138 F.3d 1083

79 Fair Empl.Prac.Cas. (BNA) 1603,

73 Empl. Prac. Dec. P 45,389

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. The CITY OF WARREN, MICHIGAN, Defendant-Appellee/Cross-Appellant,

The City of Warren Police and Firefighter Civil Service

Commission, Rule 19(a) Party, Defendant-Appellee (97-1024).

Nos. 97-1024, 97-1075.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 28, 1997.

Decided March 16, 1998.

Rebecca K. Troth (argued and briefed), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Richard S. Ugelow, Leslie T. Annexstein, U.S. Department of Justice, Civil Rights Division, Washington, DC, for Plaintiff-Appellant/Cross-Appellee.

Walter B. Connolly, Jr. (briefed), Miller, Canfield, Paddock & Stone, Detroit, MI, Alison B. Marshall (briefed), Steven C. Kahn (argued), Miller, Canfield, Paddock & Stone, Washington, DC, Erin Quinn Gery, McGuiness & Williams, Washington, DC, for Defendant-Appellee/Cross-Appellant.

James M. Hacker, Mt. Clemens, MI, for Defendant-Appellee.

Before: CONTIE, DAUGHTREY and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. CONTIE, J. (pp. 1099-1101), delivered a separate opinion concurring in part and dissenting in part.

OPINION

COLE, Circuit Judge.

The United States appeals the district court's finding that it failed to establish that the City of Warren's pre-1986 recruiting practices for municipal positions, other than police and firefighter positions, violated Title VII by having a disparate impact on black potential job applicants. The United States also appeals the district court's calculation of back pay awarded to Joseph Fears, an unsuccessful job applicant.

The City of Warren cross-appeals, challenging the district court's finding that Fears is entitled to individual relief based on Fears's uncorroborated trial testimony and his failure to reapply for a position with the city immediately after it amended its challenged practices. Warren also appeals the district court's refusal to account for the probability that Fears would not have been hired absent discrimination in calculating his back pay award. For the following reasons, with respect to the United States' appeal, we REVERSE the district court's determination and REMAND for further proceedings consistent with this opinion. With respect to the City of Warren's cross-appeal, we AFFIRM the judgment of the district court.

I.

Warren is located in Macomb County, Michigan; its southern border abuts the City of Detroit. According to the 1980 census, Warren's resident civilian labor force included 80,992 people, 0.2% of whom were black. The remainder of Macomb County's resident civilian labor force of 257,752 people was 1.3% black. The same census indicated that Detroit's resident civilian labor force of 484,203 people was 59.7% black.

Prior to October 1986, Warren's regular recruiting practice was to advertise in three newspapers with circulation primarily in Macomb County and to post notices of municipal employment opportunities in municipal buildings. At that time, Warren did not advertise opportunities for municipal work in the Detroit Free Press, the Detroit News, or any other periodicals of general circulation in the Detroit metropolitan area. In addition to these recruiting methods, until 1986, Warren limited its applicant pool by requiring all applicants for municipal positions other than police and firefighter positions to have been Warren residents for a specified duration. ¹

A.

The history of this lengthy litigation began on February 7, 1986, when the United States notified the Warren City Attorney by letter that the Department of Justice planned to investigate claims that "the City of Warren may be engaged in employment practices that discriminate against blacks unlawfully on the basis of race," including "a requirement that applicants for positions with the City of Warren must be residents of the City at the time of application [.]" JA Vol. III at 689. Eight months later, on September 23, 1986, the United States sent a "determination letter," a document the Department of Justice uses to apprise potential defendants of the results of its investigation. The letter notified the city that the United States' investigation revealed a pattern or practice of discrimination and that Warren's recruiting practices and preapplication residency requirements adversely impacted potential black applicants' employment prospects. After attempts at settlement failed, the United States filed suit against the City of Warren on October 31, 1986, alleging that Warren had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., by engaging in a pattern or practice of employment discrimination on the basis of race. The complaint reiterated the findings set forth in the September 23 determination letter, citing the preapplication residency requirement and the city's recruitment practices as violations of Title VII.

On February 14, 1991, five years after the United States filed its complaint, the district court granted the United States' renewed motion for partial summary judgment, holding that Warren's preapplication residency requirement violated Title VII because it had a disparate impact on black applicants for municipal positions. See United States v. City of Warren, 759 F.Supp. 355, 368 (E.D.Mich.1991) ("City of Warren I "). The district court found "gross statistical disparities" of 10.3 standard deviations between the number of black employees that the city employed and the expected number of black city employees, basing its findings on the number of black workers in the Detroit metropolitan area civilian labor force and among private employers in Warren, as well as on Warren's applicant flow data after 1986. See id. at 359-63. In addition, the district court held that Warren could not justify its preapplication residency requirement for any municipal positions. See id. at 364. The United States, having proved its allegations concerning Warren's residency requirement, turned its attention to the city's municipal employment recruiting practices.

In early 1992, the district court held a bench trial on the United States' contentions that Warren's recruitment and selection of municipal employees had a disparate impact on blacks, that Warren treated black applicants for employment differently than it treated similarly situated whites, that Warren maintained a racially hostile work environment, and that Warren had failed to correct the effects of its unlawful discriminatory policies and practices. The United States presented evidence that Warren recruited firefighters in March and April 1985 and police officers in January and February 1986 by posting both positions at local universities and colleges and advertising in Macomb County publications. The city advertised neither police nor firefighter job opportunities in any Detroit newspapers. In August 1985, of the 182 people who applied for firefighter positions, none were black, and of the approximately 400 police applicants, only one was black. After October 1986, Warren began advertising its police and firefighter positions in publications outside Macomb County, such as the Detroit News and the Detroit Free Press. This broadened recruitment effort significantly impacted the racial composition of the applicant pool. For example, the 1987 recruitments for police and firefighter positions attracted fifty black applicants as compared to the single black applicant from the previous recruiting season.

In August 1992, the district court ruled that the United States had not met its burden with regard to the disparate treatment, hostile work environment, and post-1986 recruiting claims. See United States v. City of Warren, 1992 WL 509994 (E.D.Mich. August 12, 1992) ("City of Warren II "). The court also ruled, however, that Warren's pre-1986 policy of refusing to advertise openings for police officers and firefighters outside of Macomb County resulted in unlawful racial discrimination, reasoning that the statistical difference in the number of black applicants for police and firefighter positions before and after 1986, when Warren began advertising police and firefighter employment outside Macomb County, indicated that the advertisement indeed had a disparate impact on black potential employees. See id. at ** 3-4. The court also noted that Warren failed to offer a business justification for its pre-October 1986 recruiting practices. However, City of Warren II limited its finding of disparate impact to police and firefighter positions, holding that the United States had presented no statistical evidence that isolated the discriminatory effect of the recruiting practices on other municipal positions and therefore had not proved that the city's recruiting practices had a disparate impact on blacks for all municipal positions. See id. at ** 3-4, * 28 n. 4. Lastly, the district court found that because the municipal work force in Warren remained only one percent black as of March 1991, the city had not eradicated the effects of its prior discrimination. See id. at * 23. The court therefore enjoined Warren from "failing or refusing to remedy the effects of its pre-October 1986 recruitment practices that have had the effect of unlawfully discriminating on the basis of race, and from engaging in any future recruitment or selection ... practices that have the purpose or effect of unlawfully discriminating on the basis of race." JA at 544. Accordingly, the district court's injunction directed Warren to advertise municipal employment opportunities in newspapers with general circulation in the Detroit metropolitan area; the city therefore expanded its recruiting efforts by advertising in newspapers with a primarily black readership in which Warren previously had refused to advertise.

B.

1. Identification of Victims

The...