Vanguards of Cleveland v. City of Cleveland

• Decision Date: 06 May 1994
• Docket Number: AFL-CI,No. 93,No. 92-4315,I,93,92-4315
• Citation: 23 F.3d 1013
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 1611, 64 Empl. Prac. Dec. P 43,018 The VANGUARDS OF CLEVELAND, et al., Plaintiffs-Appellees, v. The CITY OF CLEVELAND, et al., Defendants-Appellees. Local UnionA.F.F.,ntervenor-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1013

23 F.3d 1013

64 Fair Empl.Prac.Cas. (BNA) 1611,

64 Empl. Prac. Dec. P 43,018

The VANGUARDS OF CLEVELAND, et al., Plaintiffs-Appellees, v. The CITY OF CLEVELAND, et al., Defendants-Appellees Local Union No. 93, I.A.F.F., AFL-CIO, Intervenor-Appellant.

No. 92-4315.

United States Court of Appeals Sixth Circuit.

Argued April 18, 1994.

Decided May 6, 1994.

Edward R. Stege, Jr. (argued and briefed), Stege, Hickman & Lowder, Cleveland, OH, for plaintiffs-appellees.

Malcolm C. Douglas (argued and briefed), Office of the Director of Law, Cleveland, OH, for defendants-appellees.

Joseph W. Diemert, Jr. (argued and briefed), Joseph W. Diemert, Jr. & Assoc., Cleveland, OH, for intervenor-appellant.

Barbara L. Sloan (briefed), E.E.O.C., Office of Gen. Counsel, Washington, DC, amicus curiae E.E.O.C.

Before: MILBURN and GUY, Circuit Judges; and TIMBERS, Senior Circuit Judge. ^*

MILBURN, Circuit Judge.

Intervenor, International Association of Firefighters, Local Number 93 ("Union"), appeals the decision of the district court modifying the terms of a 1983 consent decree entered into between the Vanguards, an association of black and hispanic firefighters in Cleveland, Ohio, and the City of Cleveland ("City"). On appeal, the issues are (1) whether the district court abused its discretion when it modified the consent decree without applying the two-part test set forth in Rufo v. Inmates of Suffolk County Jail, --- U.S. ----, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), to determine whether the modification was warranted; and (2) whether the district court committed reversible error when it refused to hear evidence proffered by the Union concerning the validity of the City's 1984 and 1985 promotional examinations before approving the modification to the consent decree. For the reasons that follow, we affirm.

I.

In October 1980, the Vanguards filed an action against the City, alleging that the City had discriminated, both in policy and practice, against minority firefighters on the basis of race in promotions to the positions of lieutenant, captain, battalion chief, and assistant chief, all of which are supervisory positions in the City's Division of Fire. Since the City had previously been found liable for using discriminatory hiring practices in its police and fire departments, the City sought to negotiate a settlement with the Vanguards. As a result, the City and the Vanguards submitted a proposed consent decree to the district court in November 1981.

The Union, which represented the majority of the City's firefighters, intervened in the action. Although the Union did not participate in the initial negotiations between the City and the Vanguards, it filed objections to the proposed consent decree. Following several hearings on the Union's objections, the district court referred the matter to a magistrate judge in order to permit further discussions on the proposed consent decree. As a result of these discussions, the City and the Vanguards negotiated an Amended Consent Decree ("consent decree").

In the consent decree, the City conceded that "there [had] been a long history of discrimination against minority persons in the hiring practices and the promotion practices of the City of Cleveland Division of Fire." J.A. 43. The consent decree also stated that the Vanguards and the City were "desirous of effectuating a remedy which will eliminate all vestiges of discrimination in the promotion practices of the City of Cleveland Division of Fire." J.A. 44. To achieve this objective, the City agreed to base future promotions on "non-discriminatory and demonstrably job related" criteria, particularly, the results of promotional examinations to be administered in 1984 and 1985. J.A. 47, 49. The City also agreed to promote equal numbers of minority and non-minority firefighters from the lists of individuals who passed the two promotional examinations until all qualified minorities had been promoted. This would alter the normal practice in the City's Division of Fire, which was to promote from the eligibility lists in rank order, based upon the score achieved on the examination. Once all qualified minorities had been promoted from the lists, any additional openings could be filled with nonminorities.

Following certification of the 1985 eligibility lists, the consent decree identified specific long-range minority hiring goals for each officer position in the City's Division of Fire; namely, 25 percent for lieutenants and 20 percent for each of the other positions which would result in an overall average of 23 percent minority employment in supervisory positions. The consent decree stated that these goals were to be met by November of 1987, when the eligibility lists from the 1985 promotional examination were to expire. Further, the consent decree stated that "[e]xclusive jurisdiction is reserved in the [district court] for all purposes of enforcement, modification, or amendment of this Decree ... to guarantee the continuing effectuation of the goal of eliminating the ongoing vestiges of past discrimination ... as it impacts upon promotion within the Division of Fire." J.A. 52-53.

Although both the City and the Vanguards agreed to the proposed consent decree, the membership of the Union overwhelming voted to reject it. Following another hearing, the district court approved the consent decree on January 31, 1983. The Union appealed the entry of the 1983 consent decree; however, the consent decree was upheld by this court, see Vanguards v. City of Cleveland, 753 F.2d 479 (6th Cir.1985), and by the Supreme Court, see Local Number 93 v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986).

In 1984 and 1985, the City administered promotional examinations. Based on the results of those examinations, the City promoted equal numbers of minority and nonminority firefighters until the lists of qualified minorities had been exhausted. Overall, approximately 60 minority and 206 nonminority firefighters were promoted between 1983 and November 1987. As a result, the percentage of minority officers in the City's Division of Fire increased from approximately 5 percent to approximately 17 percent.

In November of 1987, the Vanguards filed a motion seeking to have the consent decree extended on two grounds: (1) that the overall goals of the consent decree had not been met, and (2) that the 1984 and 1985 promotional examinations given by the City were discriminatory. While the Vanguards' motion to extend the consent decree was pending, a third promotional examination was administered in June 1988. A higher percentage of minorities passed the June 1988 examination than passed the 1984 and 1985 promotional examinations. However, the district court barred any promotions based upon the 1988 promotional examination pending the resolution of the Vanguards' motion.

In response to the Vanguards' motion, the parties entered into negotiations under the supervision of a magistrate judge. In June 1992, the Vanguards and the City entered into a proposed Stipulation and Order which recommended modifications to the 1983 consent decree. Under the terms of the proposed Stipulation and Order, the amended decree would be extended for approximately two more years with one-for-one promotions of minorities and nonminorities until all qualified minorities had been promoted, which would continue for the duration of the eligibility lists from the 1988 examination. In a report and recommendation issued in June 1992, the magistrate judge recommended that the district court approve the proposed Stipulation and Order extending the consent decree for approximately two more years.

Subsequently, the Union filed objections to the proposed Stipulation and Order, asserting that the consent decree did not need to be extended because its goal, or goals, had been largely met and also asserting that the 1984 and 1985 promotional examinations were not discriminatory. On October 27, 1992, the district court held an evidentiary hearing on the proposed Stipulation and Order. The Vanguards presented evidence showing that the 23 percent goal for minority representation in the City's Division of Fire would be reached if one-for-one promotions were made over a period of approximately two years using the results of the 1988 promotional examination. The Vanguards also presented evidence that if the proposed Stipulation and Order modifying the consent decree was not approved, the percentage of minority officers in the City's Division of Fire would fall from its then current figure of approximately 17 percent to approximately 14 percent.

Both the Vanguards and the Union also proffered other evidence concerning the validity of the 1984 and 1985 promotional examinations. Specifically, the Union proffered the testimony of an expert in promotional examinations who was apparently prepared to testify that the 1984 and 1985 examinations were valid under the EEOC guidelines and not discriminatory, and the Vanguards proffered the testimony of an expert in promotional examinations who was apparently prepared to testify that the 1984 and 1985 examinations were discriminatory under the EEOC guidelines and therefore invalid. However, the district court declined to consider the proffered testimony from either the Union or the Vanguards based upon the court's determination that the validity of the 1984 and 1985 promotional examinations were not relevant to the question of whether or not the consent decree should be extended.

On November 25, 1992, the district court issued an order accepting the proposed Stipulation and Order and modifying the consent decree stating: "there is a significant public interest concern with fulfilling the objectives and goals of [the consent decree]." J.A. 35. The court further stated that "[e]ven though substantial progress [had] been made under the [consent decree]," the goals of the consent decree "[had] not been obtained" and that "substantial...