263 F.3d 513 (6th Cir. 2001), 99-3546, Cleveland Branch v City of Parma OH

Docket Nº:99-3546
Citation:263 F.3d 513
Party Name:Cleveland Branch, National Association for the Advancement of Colored People, and National Association for the Advancement of Colored People, Plaintiffs-Appellants, v. City of Parma, Ohio, Defendant-Appellee.
Case Date:August 28, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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263 F.3d 513 (6th Cir. 2001)

Cleveland Branch, National Association for the Advancement of Colored People, and National Association for the Advancement of Colored People, Plaintiffs-Appellants,

v.

City of Parma, Ohio, Defendant-Appellee.

No. 99-3546

United States Court of Appeals, Sixth Circuit

August 28, 2001

Argued: January 23, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 90-01404, Kathleen McDonald O'Malley, District Judge.

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David L. Rose, ROSE & ROSE, Washington, D.C., for Appellants.

Joseph D. King, Joseph J. Morford, ARTER & HADDEN, Cleveland, Ohio, for Appellee.

Before: BOGGS and MOORE, Circuit Judges; COHN, Senior District Judge. [*]

OPINION

MOORE, Circuit Judge.

On August 6, 1990, Plaintiffs-Appellants, the Cleveland Branch of the National Association for the Advancement of Colored People ("NAACP") and the NAACP (collectively referred to as "the NAACP"), filed this action against the City of Parma, Ohio ("Parma"), alleging that Parma discriminates on the basis of race in its recruitment, selection, and hiring of municipal employees. On March 30, 1998, nearly eight years later and after the lawsuit had been transferred twice within the United States District Court for the Northern District of Ohio,1 the district court granted

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summary judgment in favor of Parma, holding both that the NAACP lacked standing to assert its claims and that its claims were moot. The NAACP now appeals the district court's decision. For the reasons that follow, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. PARMA'S RACIAL HISTORY

Parma is a suburb of Cleveland, Ohio, located on the southern border of Cleveland near the center of the east-west axis of Cuyahoga County. In 1980, a federal district court judge found that Parma, a predominantly white city, had discriminated against Blacks in providing low and moderate income housing and issued a remedial order requiring Parma to take affirmative steps to eliminate its discriminatory housing practices and their effects. See United States v. City of Parma, 494 F.Supp. 1049 (N.D. Ohio 1980), aff'd, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926 (1983); see also United States v. City of Parma, 504 F.Supp. 913 (N.D. Ohio 1980) (remedial order), aff'd in part and rev'd in part, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926 (1983). Despite efforts by the city to diversify, however, the minority population of Parma has grown only slightly. Specifically, Parma's black population has remained very small. For example, in 1970, Blacks comprised approximately .05%, or 50 persons, out of Parma's 100,216 resident population, see Parma, 494 F.Supp. at 1056, and twenty years later, in 1990, Blacks still comprised less one percent of Parma's resident population, namely only .73%, or 639 persons, out of Parma's 87,876 resident population. U.S. Census Bureau, 1990 Census of Population and Housing (1990).2

Like the resident population of Parma, data suggest that the racial composition of Parma's municipal workforce also lacks diversity. For example, despite the enactment in 1981 of a formal affirmative action program,3 by 1988, Parma had only one black employee out of more than 460 full-time employees, a number equivalent to approximately .22% of the city's full-time workforce. Joint Appendix ("J.A.") at 780 (1991 Expert Report of Herbert Hammerman), 811 (1990 Ries Dep.). Six years later, in 1996, Parma employed only two

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black full-time employees out of 464 full-time employees and no black part-time employees out of 314 part-time employees, a number which represents approximately .26% of the city's entire municipal workforce.4 J.A. at 936-936A. Apart from these two black full-time employees, only one other employee of Parma was non-white in 1996; that employee was listed as an Asian or Pacific Islander. J.A. at 936, 936A, 1310.

Parma's statistics regarding the employment of Blacks in municipal jobs stand in stark contrast to those regarding the employment of Blacks in the private sector of Parma and in the private and public sectors of the Cleveland metropolitan area.5 According to an Equal Employment Opportunity ("EEO") report in 1994, Blacks constituted a significantly higher portion of the private workforce in Parma than in its municipal workforce, making up 9.5% or 2,224 of the 23,476 workers in private employment in Parma. J.A. at 956 (1997 Expert Report of Herbert Hammerman). Similarly, a 1995 report of the racial composition of the private workforce in the Cleveland metropolitan area showed that Blacks comprised 15.2% of the workers in that area's private sector. J.A. at 956 (1997 Expert Report of Herbert Hammerman). More importantly, state and local government employers in the Cleveland metropolitan area employed a workforce that was 31.5% black, nearly double that of the metropolitan area's private sector, more than triple that of Parma's private sector, and more than thirty-two times that of Parma's public sector. See J.A. at 957 (1997 Expert Report of Herbert Hammerman). In the opinion of the NAACP's expert, Herbert Hammerman, a labor market economist, this vast difference between the percentage of employees in the public and private sectors of Parma was unusual because "the employment of blacks by the state and local government public sector is [generally] substantially higher than private employment." J.A. at 956 (1997 Expert Report of Herbert Hammerman). According to Hammerman, "[t]he ratio of the percentage of blacks in public sector jobs [in 1994] to the percentage of blacks in private establishment jobs [was] 1.42," and "[a]pplying [that] national ratio, black employment available to Parma would be 13.5%." J.A. at 956 (1997 Expert Report of Herbert Hammerman). See also NAACP v. Town of East Haven, 892 F.Supp. 46, 50 (D. Conn. 1995) (noting that "Blacks generally have a higher representation in government than private industry").

Hammerman also explained that Parma's percentage of black municipal workers not only appeared low when compared to the percentage of black workers in the city's private sector or the public and private sectors of the Cleveland metropolitan area but also when viewed in light of the black workforce available to municipal employers in Parma, which Hammerman estimated to be about 19.7% of the available workforce. Using this estimate in an analysis of the racial composition of Parma's new municipal hires in 1996, Hammerman calculated between 2.9 and 7.5 standard deviations when he analyzed the statistical probability that random selection was responsible for the absence of Blacks from the group of new employees hired in fiscal year 1996, figures which indicated "very little probability that the failure to hire

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any blacks was due to chance."6 J.A. at 967 (1997 Expert Report of Herbert Hammerman).

B. PARMA'S HIRING REQUIREMENTS

Before 1988, Parma limited eligibility for municipal employment to "bona fide" residents of Parma, and employees of Parma were required to remain residents during their employment with Parma. J.A. at 308 (Ordinance 223-76). In 1988, however, Parma modified its residency requirement to permit a non-resident applicant to compete for a municipal position so long as that applicant established "permanent" residence in the city within eighteen months after starting employment. Those who were employees on the effective date were required to remain residents of Parma until the fifth anniversary of the commencement of their employment; thereafter, employees could reside in any municipality bordering Parma. J.A. at 192, 309, 311 (Ordinance 86-88).

In 1995, Parma once again amended its residency ordinance to allow non-resident applicants to obtain municipal jobs so long as they moved within fifteen miles of the outer boundary of Parma within eighteen months of becoming a municipal employee. J.A. at 311 (Ordinance 299-95). This fifteen-mile boundary incorporated virtually all of Cuyahoga County, which had a black population of 24.8%, or 350,185, of the county's 1,412,140 residents in 1990.7 U.S. Census Bureau, 1990 Census of Population and Housing (1990). On June 3, 1996, Parma extended the boundary to twenty-two miles. J.A. at 313 (Ordinance 191-96).

Despite the changes that have been made to Parma's municipal job requirements, the record shows that Parma still continues to ask job applicants for information regarding their residency beyond their mailing address on its employment application. Specifically, Parma asks applicants to specify how many years and months they have lived in Parma if they are residents, whether they have relatives employed by the city, and what is the residence of any person recommending them for employment with Parma. J.A. at 1183 (Employment Application). Also, in September 1989, more than a year after repealing its official residency requirement, Parma hired three individuals, Greg Kohler, Vincent Semanik, and Robert Tarro, from an eligibility list that was created before Parma repealed its residency requirement, see Supplemental ("Supp.") J.A. at 58; J.A. at 978, 982, 984, and a few months thereafter, in April 1990, Parma hired three more individuals, Joseph Bobak, Daniel Heinz, and Orville Hildebrand, from an eligibility list that was created before Parma repealed its residency requirement, see Supp. J.A. at 58; J.A. at 974, 977.

Additionally, based on the data presented to the district court, the vast majority of recent hires for Parma have been residents of the city. For example, of the twenty-eight applicants who secured employment...

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