Aiken v. City of Memphis
| Decision Date | 06 October 1994 |
| Docket Number | 92-6157,Nos. 92-6154,s. 92-6154 |
| Citation | 37 F.3d 1155 |
| Parties | 65 Fair Empl.Prac.Cas. (BNA) 1757, 63 USLW 2223 Russell AIKEN, et al. (92-6154); William Ashton, et al. (92-6159), Plaintiffs-Appellants, v. The CITY OF MEMPHIS; Richard C. Hackett, individually and in his official capacity as Mayor; James Ivy, individually and in his official capacity as Director of Police Services, Defendants-Appellees. Freddie EASON (92-6157), Plaintiff-Appellant, v. The CITY OF MEMPHIS, Defendant-Appellee. Sam DAVIS, et al. (92-6158), Plaintiffs-Appellants, v. The CITY OF MEMPHIS; Richard C. Hackett, individually and in his official capacity as Mayor; B.G. Hall, individually and in his official capacity as Director of Fire Services, Defendants- Appellees. to 92-6159. . Re |
| Court | U.S. Court of Appeals — Sixth Circuit |
David M. Sullivan (argued and briefed), Memphis, TN, for Russell Aiken, Frank Amato, Charles Barnes, Kennon Carlton, Danny Carter, Tammy Clevenger, J.R. Coatney, Steve Comella, H.J. Essary, Bryant Jennings, Paul Keating, Barry Lane, Russell Lollar, A.E. Locke, Mark McClain, Frank McGowan, Danny O'Connor, Monte Perkins, Allen S. Rawie, Rick Sansom, E. Lawrence Smith, Dana Stine, Robert J. Stone, Jerry Tennyson, James Wiley, Dan Wood, John R. Wright and Joseph Wright in No. 92-6154.
Thomas Edwards Hansom, Louis Britt (briefed and argued), H. Lynne Smith, Office of the City Atty., Dan M. Norwood, Charles V. Holmes, McKnight, Hudson, Lewis & Henderson, Memphis, TN, for defendants-appellees in No. 92-6154.
Gregory B. Friel (briefed), U.S. Dept. of Justice, Civil Rights Div., Appellate Section Washington, DC, for amicus curiae U.S. in Nos. 92-6154, 92-6157.
David M. Sullivan (argued and briefed), Memphis, TN, Freddie Eason in 92-6157.
Richard B. Fields, H. Lynne Smith, Mark A. Allen, Agee, Allen, Godwin, Morris & Laurenzi, Louis Britt (argued and briefed), Charles V. Holmes, McKnight, Hudson, Lewis & Henderson, Memphis, TN, for defendant-appellee in No. 92-6157.
David M. Sullivan (argued and briefed), Memphis, TN, for Sam Davis, Allen Roberts, Herbert Chambers, John Distretti, Kenneth Jackson and Billy L. Tuten, in No. 92-6158.
Richard B. Fields, Mark A. Allen, Agee, Allen, Godwin, Morris & Laurenzi, Louis Britt (argued and briefed), Charles V. Holmes, McKnight, Hudson, Lewis & Henderson, Memphis, TN, for defendants-appellees in No. 92-6158.
David M. Sullivan (argued and briefed), Memphis, TN, for William Ashton, Don Boyd, Kennon Carlton, Danny Carter, James Coatney, Steve Cole, Stephen Comella, Dan Cook, Ronald Cummings, Thomas Helldorfer, Billy Garrett, Richard Kitchens, George Maxwell, Frank McGowan, Danny O'Connor, Stephen Roberson, Frederick Sansom, Robert Shelton, Thomas Simmons, Dale Simms, Dana Stine, Roy Tidwell, Ronnie Weddle, Reed Westbrook, James Wright, Joseph Wright and Owen Yarbrough, in No. 92-6159.
Louis Britt (argued), Charles V. Holmes, McKnight, Hudson, Lewis & Henderson, Memphis, TN, for defendants-appellees in No. 92-6159.
Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MULBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER and DAUGHTREY, Circuit Judges.
MERRITT, C.J. (pp. 1168-69), also separately concurred. NATHANIEL R. JONES, J. (pp. 1169-79), delivered a dissenting opinion, in which KEITH, BOYCE F. MARTIN Jr., and DAUGHTREY, JJ., joined. KEITH J. (pp. 1179-81), also separately dissented.
Plaintiffs appeal the district court's dismissal, pursuant to Fed.R.Civ.P. 56, of their "reverse discrimination" civil rights actions. Although we find that the race-based promotions at issue here were supported by a "compelling interest," we conclude that a genuine issue remains as to whether the promotions were made pursuant to a "narrowly tailored" remedy. We therefore vacate the summary judgments for defendants and remand these cases to the district court.
In 1974, the United States Department of Justice brought a civil rights action against the City of Memphis, Tennessee, in which it alleged that the City had engaged in race and gender discrimination in the hiring and promotion of City employees. To settle this lawsuit, the City and the United States entered into a consent decree that was approved by the United States District Court for the Western District of Tennessee in November 1974. In the decree, the City denied that it had unlawfully discriminated but admitted that certain of its past practices may have given rise to an inference that it had engaged in unlawful discrimination. The decree stated that its purpose was "to insure that blacks and women are not placed at a disadvantage by the hiring, promotion and transfer policies of the City, and that any disadvantage to blacks and women which may have resulted from past discrimination is remedied so that equal employment opportunities will be provided to all." (Eason App. at 19.) Moreover, the decree provided:
[I]n determining whether th[is] purpose has been achieved, an appropriate standard of comparison is the proportion of blacks and women in the Shelby County civilian labor force. The City, therefore, agrees to undertake as its long term goal in this decree, subject to the availability of qualified applicants, the goal of achieving throughout the work force proportions of black and female employees in each job classification, approximating their respective proportions in the civilian labor force.
(Eason App. at 19-20.) The decree further stated that the City could apply for dissolution of the decree at any time after five years subsequent to the date of its entry.
The City was sued again when, in August 1975, the Afro-American Police Association filed in the same district court an action in which it alleged that the promotion practices of the Memphis Police Department were racially discriminatory. To settle this action, the parties entered into a consent decree that was approved by the district court in March 1979. In the stipulation of facts that was submitted along with the decree, the City denied that it had "intentionally engaged in unlawful employment discrimination with respect to the employment of blacks on the Memphis Police Department in the period since March 24, 1972," but admitted that "historically blacks have been excluded from or limited in hiring or promotional opportunities within its police department[.]" (Aiken Plaintiffs' Brief Addendum at 22.) The decree declared that its purpose was "to prohibit unlawful discrimination in the promotional practices of the Memphis Police Department, and to eliminate any effects of prior discrimination." (Aiken App. at 164.) The decree thus provided that, "to the extent that qualified black applicants are available ... the percentage of promotions awarded to blacks at each rank shall constitute at least the percentage which blacks constitute in the next rank below." (Aiken App. at 164.)
In 1977, the City was sued once again. Carl Stotts, a black employee of the Memphis Fire Department, filed in the same district court an action in which he alleged that the fire department had racially discriminated in its hiring and promotion practices. The Stotts litigation thereafter was certified as a class action and consolidated with another lawsuit filed by a different black employee of the Memphis Fire Department. In 1980, the parties to the Stotts litigation entered into, and the district court approved, a consent decree whose purpose was "to remedy the past hiring and promotion practices of the Memphis Fire Department with respect to the employment of blacks and [to continue] the efforts made in the City in hiring and promotions under the [1974] consent decree[.]" (Eason App. at 63.) The 1980 decree shared with the 1974 decree the goal of "rais[ing] the black representation in each job classification on the fire department to levels approximating the black proportion of the civilian labor force in Shelby County." (Eason App. at 63.) The City accordingly "adopt[ed] the goal of promoting Black applicants to positions above the rank of private or other entry level job classification in proportion to their representation in the qualified applicant pool for each uniformed rank or civil service classification." (Eason App. at 64.) The parties to the 1980 decree further agreed that, without regard to the actual percentage of blacks in the lower ranks of the fire department, at least 20% of each year's promotions would be reserved for blacks. The 1980 decree cautioned, however, that it should not "be construed in such a way to require the promotion [of] the unqualified or the promotion of the less-qualified over the more qualified as determined by standards shown to be valid and non-discriminatory[.]" (Eason App. at 64.)
In 1981, the City and the United States entered into an "amended consent decree," in which they agreed that "certain provisions of the [1974] decree have served their purpose, and the goals of [that] decree should be updated to meet present circumstances." (Eason App. at 77.) The 1981 decree "substitute[d] for the [1974] decree" (Eason App. at 77) and was approved by the district court. The 1981 decree reaffirmed the 1974 decree's long-term goal of remedying any disadvantage to blacks that may have resulted from past discrimination, and retained, subject to the availability of qualified applicants, "the goal of achieving in the Divisions, and where applicable, the job categories and classifications specified in this decree[,] proportions of black...
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