Afro American Patrolmen's League v. Duck
| Decision Date | 13 November 1973 |
| Docket Number | Civ. No. 73-327. |
| Citation | 366 F. Supp. 1095 |
| Parties | AFRO AMERICAN PATROLMEN'S LEAGUE et al., Plaintiffs, v. Robert DUCK, etc., et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
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Green & Lackey, Joseph A. Flores, Toledo, Ohio, for plaintiffs.
John J. Burkhart, City Law Dep't, Toledo, Ohio, for defendants.
Richard S. Walinski and T. Scott Johnston, Toledo, Ohio, for intervenors.
The plaintiffs in this case are an organization of police officers, and two individual police officers, suing as representatives of a class. The defendants are the Chief of Police, the City Manager, Safety Director, members of the Civil Service Commission, and Executive Director of the Civil Service Commission of the City of Toledo, Ohio. Two policemen's organizations sought but were denied leave to intervene as defendants.1 The fifteen individuals who stood highest on the sergeant's eligibility list also sought, and were granted, leave to intervene as parties defendant.2
This action was filed on August 13, 1973. Prior to this, on August 2, 1973, the plaintiffs herein sought leave to intervene in the pending case of Sarabia v. Duck, Civil No. C 72-263 and to file therein an amended complaint raising the issues set forth in the complaint herein. Hearing was held upon the motion, and while the plaintiffs were given leave to intervene in the pending case, they were denied leave to file their amended complaint, since the issues tendered therein were unrelated to the issues in the pending case. Case No. C 72-263 concerns alleged racial discrimination in police hiring practices. The present case involves alleged racial discrimination in police promotion practices.
As originally presented in the amended complaint in Case No. C 72-263, the plaintiffs' cause of action sought to restrain the defendants from promoting police sergeants, captains, and lieutenants from eligibility lists established for captains on August 10, 1971, and for lieutenants and sergeants on May 17, 1973. Three promotions had been made from the captains' list, and three from the lieutenants' list on August 1, 1973, and fifteen promotions were about to be made from the sergeants' list.
By stipulation, the promotions from the sergeants' list were stayed pending the filing and disposition of this case, and the case was assigned for trial commencing on October 23, 1973. Trial was commenced on that day, and concluded on October 30, 1973.
The complaint in this case was filed as a class action by the named plaintiffs as representatives of a class consisting of all present and future minority members of the Toledo Police Department who have been discriminated against by the defendants' use of unvalidated and culturally biased tests, practices, and procedures.
At the outset of the case, the defendants contended that the only persons who could properly be considered as members of the class of plaintiffs were those individuals who were eligible to and did take the promotional civil service examination for sergeant, and that those persons were not too numerous to be named as individual parties plaintiff. However, it seemed clear at the time, and the evidence made it much clearer, that the really important persons affected by this litigation are those minority members whose interest in becoming members of the police department in the future is gravely affected by promotional practices in that department. For if the police department is to be attractive to minorities it is not enough that the hiring practices be on a nondiscriminatory basis but also that advancements and promotions be made nondiscriminately. There are unquestionably large numbers of such persons, but who they are cannot be precisely ascertained. Class actions are particularly well suited to the determination of the rights of such groups.3
It is not even suggested that the plaintiffs are not members of or would not properly represent the members of the class, or that the other elements of a class action are not present.
The Court ruled tentatively at the beginning of the trial that the matter would proceed as a class action, the class being as described in the first paragraph of this section of this opinion. After hearing the evidence, the Court is satisfied that its tentative determination of the class action issue was correct. This action will therefore proceed as a class action on behalf of the members of the hereinbefore described class.
There was much argument both at pre-trial and at trial about who was to carry the burden of proof. It is possible to have a great deal of technical argument on this point, and this possibility was rather well explored herein.
Technically, of course, the plaintiff has the burden of proof in ordinary litigation. Once the plaintiff establishes a prima facie case by the requisite degree of proof, which in this case would be a preponderance of the evidence, the defendant must offer sufficient evidence to equal the weight of plaintiffs' evidence.4 In the sense that after plaintiff has established a prima facie case, the defendant must offer countervailing evidence, or fail, it can be said that the burden of proof has shifted to the defendant. Actually, the burden of proof has not shifted. All that has shifted is the burden of going forward with the production of evidence.5
In civil rights cases involving an alleged discrimination as to race, religion, sex, or other matters, since the courts are dealing with imponderables concerning which it is difficult to make factual proof, it is usually argued that all the plaintiff needs to do is to show that there is a numerical imbalance in the number of persons of different groups in the defendants' service and the numbers of persons of such groups in the general population, and that this imbalance is great enough to be statistically significant. Once the plaintiff has established this statistically significant imbalance, a presumption arises that it is the result of discriminatory practices on the part of the defendant. The defendant must then offer evidence to rebut this presumption or fail.6
It has been said that Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Commission, 482 F.2d 1333, 1335 n. 4 (2d Cir. 1973). While the Court of Appeals of this Circuit has not specifically addressed itself to this problem, it has held "Where a history of racial segregation is shown to exist, the burden of showing nondiscrimination is on the party having the power to produce the facts." Rolfe v. County Board of Education of Lincoln County, Tenn., 391 F.2d 77, 80 (6th Cir. 1968).
There is a serious question as to whether the evidence in this case shows a history of segregation. The evidence does show that for a long time there were few minority police officers, and even fewer police command officers in the Toledo Police Department, and that certain physical and educational requirements for membership in the police force, combined with limited efforts to recruit minority members, may have contributed to this. There was also evidence that minority members had for a long time resisted recruiting efforts that were made, and some were still unconvinced that there was any real desire to integrate minority members into the police force. At the time of trial, the proportion of all minority members on the force was about half that in the community, although the proportion of minority members of Spanish-speaking descent was only five-tenths of one percent less on the force than in the community.
Givng the plaintiffs the benefit of the doubt, it can hardly be said that the statistics alone are sufficient to establish a prima facie case of racial discrimination. However, when the statistics of racial imbalance in police command positions are viewed in the light of all the evidence in the case, the Court is satisfied that the plaintiffs have borne the burden of showing that there are discriminatory elements in the promotional system of the Toledo Police Department which must be eliminated in order not to perpetuate the present condition of racial imbalance.
The problems of discrimination involved in this case, and the methods to be used in resolving them, are extremely complex. They were approached rather simplistically by the parties, which does not particularly ease the difficulties of decision.
Much of the evidence in the case was presented by a series of elaborate stipulations of fact. From these stipulations it appears that at present, the population of the City of Toledo, broken down by race, is as follows:
Total Population (all races) 384,015 100%
White 322,356 84%
Black 52,925 13.8%
Persons of Spanish-speaking
descent 7,352 1.9%
All others 1,382 0.3%
The breakdown by race within the Toledo Police Department is:
White 720 91.8%
Black 53 6.8%
Spanish origin 11 1.4%
The racial breakdown by rank within the Toledo Police Department is:
Total in Spanish
Rank Rank White Black Origin
Chief 1 1
Asst. Chief 5 5
Captain 18 18
Lieutenant 39 38 1
Sergeant 80 80
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