Brown v. Neeb
| Decision Date | 03 March 1981 |
| Docket Number | Nos. 80-3468,80-3476,s. 80-3468 |
| Citation | 644 F.2d 551 |
| Parties | 25 Fair Empl.Prac.Cas. 267, 25 Empl. Prac. Dec. P 31,593 Angus BROWN et al., Plaintiffs-Appellees, v. Carl NEEB et al., Defendants-Appellants, Fire Fighters Local Union 92, affiliated with the International Association ofFire Fighters, Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert G. Young, Regional Justice Center, Frank T. Pizza, Toledo, Ohio, for defendants-appellants in 80-3468.
Glenn G. Galbreath, Joseph R. Tafelski, Toledo, Ohio, for plaintiffs-appellees in 80-3468.
Ted Iorio, Tobie Braverman, Gallon, Kalniz & Iorio, Co., L.P.A., Toledo, Ohio, for intervenor-appellant in 80-3476.
Dale A. Wilker, Thomas A. Karol, Toledo, Ohio, for plaintiffs in 80-3476 and for plaintiffs-appellees in 80-3468.
John J. Burkhart, City Law Dept., Toledo, Ohio, for defendants in 80-3476 and for defendants-appellants in 80-3468.
Before KEITH and BROWN, Circuit Judges, and WISEMAN, District Judge. *
This case presents questions regarding the scope and effect of a consent decree. In 1972, black and Hispanic firefighter applicants sued the city of Toledo, Ohio. In 1974, the plaintiffs and defendants entered into a consent decree which, inter alia, committed the defendants to achieve in five years a ratio of minority employment within the fire department which reasonably reflected the ratio of each minority group to the total population of Toledo. The consent decree was silent about the effects of layoffs on the affirmative action goal. In June of 1980 economic problems forced the city of Toledo to lay off firefighters. Many of the firefighters who were laid off were recently-hired blacks and Hispanics. The plaintiffs filed motions in the district court seeking an order preventing the city from laying off the minority firefighters. The district court granted the requested relief, and this appeal was brought. We affirm.
In August of 1972 a class of black and Hispanic plaintiffs filed suit against the city of Toledo, Ohio. The plaintiffs alleged that the city fire department's employment policies and practices violated the plaintiffs' civil rights under 42 U.S.C. §§ 1981 1 and 1983 2 and the United States Constitution.
At the same time this suit was filed, a related suit was brought against the Toledo police department, also alleging discriminatory employment practices. Sarabia v. Duck, 601 F.2d 914. In addition, in August of 1973 a group of black and Hispanic police officers brought suit against the Toledo police department. This suit alleged that the city engaged in illegal discrimination in the promotion of police officers within the department. All three cases were assigned to District Judge Don Young.
The police department promotions case went to trial first. Judge Young found discrimination and ordered appropriate relief. Afro-American Patrolman's League v. Duck, 366 F.Supp. 1095 (N.D.Ohio, 1973). This court affirmed. Afro-American Patrolman's League v. Duck, 503 F.2d 294 (6th Cir. 1974).
After this court's affirmance of Judge Young's findings of discriminatory employment 3 and promotional practices in the Toledo police department, Afro-American Patrolman's League, supra, the city of Toledo moved to resolve the pending cases of Sarabia v. Duck, alleging discriminatory employment practices in the Toledo police department, and this case, alleging discriminatory employment practices in the Toledo fire department. The city and the plaintiffs in On November 27, 1974, a consent decree was signed by the parties and approved by Judge Young. The consent decree entered in Sarabia was nearly identical to the consent decree entered in this case.
Sarabia and in this case agreed upon a consent settlement.
The consent decree read as follows:
WHEREAS, petitioners commenced this action in an effort to redress alleged discrimination against blacks, Hispanics, and other minority citizens in employment within the fire department, and
WHEREAS, the City of Toledo is strongly committed to the concept of affirmative action to erase any vestiges of past employment discrimination within its municipal government, and
WHEREAS, both parties to this action agree that only qualified candidates should be appointed to the Fire Department and that no employment quotas should be imposed, and
WHEREAS, pursuant to Administrative Regulation 13 the defendants are committed to the concept of well-integrated departments at all levels of municipal government.
NOW THEREFORE, it is agreed by and between the parties and now therefore, it is Ordered and Adjudged that:
1. The defendants shall begin immediately the process required to validate all employment qualifications, requirements, and examinations for the Toledo Fire Department consistent with EEOC guidelines 29 C.F.R. §§ 1607-1, 1607.14. The validation procedures shall be of a quality to insure that such qualifications, requirements, and examinations used in the fire selection process do not discriminate against Blacks, Mexican-Americans, or any other person and that the results obtained will provide a reasonable prediction of job performance within the Toledo Fire Department.
2. The plaintiffs shall have the right to engage an impartial and professionally qualified expert on the construction and administration of tests of ability to assist the personnel technician(s) of the Civil Service Commission and Toledo Fire Department. A reasonable fee for the services of the expert shall be paid by the City of Toledo. The plaintiffs expert shall:
(a) Prior to the administration of any examination consult and meet with Civil Service officials to assist in the selection of areas and appropriate types of questions, and assist in the development of a job-related examination, subject to the limitation that he shall not view the actual questions prior to the administration of the examination.
(b) Subsequent to the administration of any entrance level examination for firemen, and prior to the grading thereof, plaintiff's expert shall have the right to review the examination and challenge any question thereon as to its job-relatedness and/or relevance. No question shall be graded which defendants' personnel technicians and plaintiff's expert agree is not a job-related and/or relevant question.
3. If a disagreement as to the inclusion for grading of a particular question arises, such question may be submitted to the court, under seal, together with brief statements of reasons for inclusion or exclusion, for an in camera examination and ruling.
4. Together with administering a validated test defendants shall, after consultation with plaintiffs, submit to this court within 90 days after the entry of this order a comprehensive plan of affirmative recruitment, and hiring procedures to assure equal employment opportunities for Blacks and Mexican-Americans. Such plan shall include but not be limited to:
(a) A comprehensive Affirmative Action and minority recruitment program utilizing minority firefighters already employed by the Toledo Fire Department, the media, including radio, television, and newspaper communications, existing minority oriented groups, organizations, and educational institutions, calculated to apprise the minority community of the availability and advantages (b) It shall be the goal of this Affirmative Action and minority recruitment program to attract sufficient numbers of minority applicants for employment to the Fire Division of the City of Toledo so that within five (5) years from the date of this Order, the ratio of minority employment within the Fire Division reasonably reflects the ratio of each minority group to the total population of the City of Toledo (for the purposes of this Order the term "each minority group" refers to the separate groups of Black Americans and persons of Spanish descent).
of employment with the Toledo Fire Department.
(c) Administrative Regulation 13 of the City of Toledo, promulgated on March 7, 1967 shall, in its full content, apply to recruitment and appointment to the Toledo Fire Department. Once a validated test is given to a group of applicants sufficient to represent substantial progress toward the above stated goal, the Fire Department shall retain the discretion to select recruits from the resulting certified list subject to the provisions of AR 13 and in particular paragraph B(2) thereof.
5. On or about the anniversary date of this order each year until the goal stated in paragraph 5(b) of this Order is attained, the parties shall meet to review defendants' progress in meeting their Affirmative Action obligations and employment goal, and, jointly or severally submit to this court a yearly progress report.
6. This court shall retain continuing jurisdiction over this matter for the entry of such further orders as may be appropriate to effectuate the provisions of this Order, and to monitor the progress of the Defendants in meeting its Affirmative Action obligations and its stated employment goal.
We will discuss the consent decree at length later in this opinion. For present purposes, we need only note that the decree directed the city to actively recruit black and Hispanic firefighters and to establish a hiring test which was job related under EEOC guidelines. Although the decree stated that "no employment quotas should be imposed", the decree also stated that it was the goal of the minority recruitment program to achieve within 5 years a fire department which reflected the racial composition of the city as a whole.
Despite the consent decree's recitation of the city of Toledo's commitment "to the concept of well integrated departments ...", racial integration of the fire department has proceeded at a snail's pace. The Toledo metropolitan area is approximately 16% black and Hispanic. But in January of 1973, shortly after this suit was first filed, the Toledo fire department had 10 black...
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