N.A.A.C.P., Inc. v. Town of East Haven

• Decision Date: 20 October 1995
• Docket Number: D,No. 479,479
• Citation: 70 F.3d 219
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 500, 67 Empl. Prac. Dec. P 43,827, 32 Fed.R.Serv.3d 1255 NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, INC. (NAACP) and New Haven Branch, NAACP, Plaintiffs-Appellants, v. TOWN OF EAST HAVEN and East Haven Board of Education, Defendants-Appellees. ocket 95-7583.
• Court: U.S. Court of Appeals — Second Circuit

Page 219

70 F.3d 219

69 Fair Empl.Prac.Cas. (BNA) 500,

67 Empl. Prac. Dec. P 43,827, 32 Fed.R.Serv.3d 1255

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE INC. (NAACP) and New Haven Branch, NAACP Plaintiffs-Appellants, v. TOWN OF EAST HAVEN and East Haven Board of Education Defendants-Appellees.

No. 479, Docket 95-7583.

United States Court of Appeals Second Circuit.

Argued Aug. 30, 1995.

Decided Oct. 20, 1995.

Joshua N. Rose, Washington, DC (David L. Rose, Rose & Rose, P.C., Washington, DC, of counsel) for Plaintiffs-Appellants.

Suzanne L. McAlpine, New Haven, CT (Hugh F. Keefe, Lynch, Traub, Keefe & Errante, New Haven, CT, of counsel) for Defendants-Appellees.

Before: CARDAMONE, MINER and CALABRESI, Circuit Judges.

MINER, Circuit Judge:

Plaintiffs-appellants National Association for the Advancement of Colored People (NAACP) and New Haven Branch of NAACP appeal from an order entered in the United States District Court for the District of Connecticut (Dorsey, Ch. J.) denying, on the ground of public safety, a motion for a preliminary injunction brought to enjoin defendant-appellant Town of East Haven from hiring any police officers or firefighters pending a decision on the merits in the captioned action. The underlying action was commenced pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., to redress employment discrimination based on race. For the reasons that follow, we vacate the order and remand for findings of fact and conclusions of law in accordance with the provisions of Fed.R.Civ.P. 52(a).

BACKGROUND

According to appellants, "the Town of East Haven Connecticut has never hired a black employee in its police, fire, public works or administrative functions. East Haven employs at least 199 full time permanent and 71 other employees, not one of them black." East Haven is bordered by the City of New Haven, which has a significant black population. The resident population of East Haven is 99% white, although private employers with establishments in the East Haven zip code area have a 17.7% black workforce. Appellants claim that the disparity represents a statistical variation of as much as 7.6 standard deviations. During the course of the proceedings in the district court, counsel for the Town apparently agreed with the court's statement that "there is no dispute but that whatever the relevant market is that the actual hiring, the actual employment, represents at least a 3.8 standard deviation." A standard deviation of 2 is described as indicative that the variation is due to a factor other than chance. See Waisome v. Port Auth., 948 F.2d 1370, 1376 (2d Cir.1991). Appellants' complaint refers to various statistics that are alleged to support inferences of disparate treatment and disparate impact.

The original complaint in the action was filed on May 21, 1993. On June 30, 1994, the Town moved for summary judgment on appellants' disparate impact and disparate treatment claims and on the issue of standing. By amended ruling entered on March 2, 1995, the district court denied the motion as to the disparate treatment claim and the issue of standing but granted the motion to the extent of dismissing the disparate impact claim.

Thereafter, on April 3, 1995, appellants moved for a preliminary injunction "enjoining further testing or hiring for East Haven jobs pending trial and decision in this action." The non-jury trial commenced on April 11, 1995, before any ruling was made on the preliminary injunction motion. Evidence was received over a period of seven trial days in April. During trial, appellants moved for leave to add the East Haven Board of Education as a defendant in the case. The motion was granted by order entered on May It was during the trial that the court turned its attention to the then-pending preliminary injunction motion and conducted a dialogue with counsel regarding the proper disposition of the motion. The result was an order dated June 8, 1995 in the following form: "Based on the record developed in open court, plaintiffs did not establish a showing that a preliminary injunction is required. Accordingly, plaintiff's motion for preliminary injunction is denied. SO ORDERED." To ascertain the basis for this ruling, reference must be made to the record of trial and to the statements made by the district court during the course of the arguments recorded in regard to the preliminary injunction issue at the trial. Commenting on the evidence that it perceived as bearing on the motion, the district court stated:

                10, 1995.  On June 1, 1995, the district court granted a motion for clarification and articulation.  Noting that it had previously granted a motion for summary judgment dismissing the disparate impact claim, the district court decided, because appellants had presented evidence of disparate impact at trial, "plaintiff will clarify or alter its trial preparation order to conform with proffered evidence."   The court set dates for the Board of Education to respond to the complaint and for the Town to respond to the disparate impact claims.  It appears that the Board of Education then will conduct discovery, and the Town will be afforded the opportunity to introduce evidence to rebut the disparate impact claims
                

I would be very reluctant to preclude the Chief [of the East Haven Fire Department] ... from filling the nine vacancies because there's a safety problem. And while it might very well be appropriate to provide equal opportunities in the future, it would be singularly inappropriate to jeopardize the town's safety as far as either the police or fire is concerned by virtue of the unfilled vacancies.

In regard to the issue of whether the Town needed to fill the vacancies to avert a dangerous condition of understaffing, appellants argue that, because the Fire Department had been "down seven [firefighters] for over a year and the town didn't do anything very much about it," and because "[t]he Police Chief testified that he was down six [police officers] for a long period of time and the town hasn't done very much about it," there was no safety problem. The court, however, observed that "it's only logical that departmental personnel levels are a reflection ... of what somebody has determined over the years ... [that] suggests the level that needs to be for safety reasons." Continuing along the same line, the court further observed: "I assume that when the Fire Chief, for example, has got forty people plus fourteen supervisory positions, that he's got them because over the years there has evolved a determination that that's what's necessary for the safety of the town."

Appellants then requested that they be allowed to call the Fire Chief, who had just stepped down from the witness stand and was available in court. Appellants wished to have the Chief take the stand so that they could elicit testimony on the safety issue. The district court indicated that the appellants could call the Fire Chief to the stand but then told them it would be futile because, in the court's opinion, the testimony would not be helpful. The district court ended its discussion of the preliminary injunction motion with the following observation:

If the town says they need forty people, I think as quickly as possible they should get forty people. The fact that they've lived without [full staffing] for a while ... tempers the necessity to a certain degree. But on the other hand, it doesn't suggest to me that any protracted period of time is justified in fulfilling at [least] the bulk of the positions, because even ... [if] some relief were to be ordered, it might be that a new test would be ordered. Of course, then I've got to take into consideration the cost of that. But it may be that it's appropriate ... to require a greater recruiting effort and a new test and appointments made from that test. And maybe that's going to solve the problem, but on the other hand maybe not too.

It therefore can be gleaned from the record that the district court based its denial of the preliminary injunction as regards the hiring of police officers and firefighters solely

                upon its concern for public safety in the Town.  Although appellants originally sought to enjoin all hiring in the Town by way of this motion for preliminary injunction, their appeal here is from the denial of the motion only as it pertains to police and fire personnel.  While this appeal was pending, appellants made a motion in this court to enjoin any hiring by the Town pending appeal.  A motions panel of this court ruled "that a limited stay is granted (as to police and fire officers only) pending hearing of the appeal without prejudice to either side requesting either continuance or a vacating of the stay at oral argument."   The appeal was expedited and, at oral argument, we continued the limited stay pending our decision in this case.
                

DISCUSSION

A party seeking a preliminary injunction must demonstrate "(1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief." Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). "This second 'serious questions' prong is also frequently termed the 'fair ground for litigation' standard." Able v. United States, 44 F.3d 128, 130-31 (2d Cir.1995). However, the fair-ground-for-litigation prong may not be considered "where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989). The moving party in such a case must establish, to the satisfaction of the district court, both irreparable injury and a likelihood of success on the merits. Id.

It seems clear from the record before us that the Town of East...