Vanguards of Cleveland v. City of Cleveland
| Decision Date | 22 April 1985 |
| Docket Number | No. 83-3091,I,AFL-CI,83-3091 |
| Citation | 753 F.2d 479 |
| Parties | 36 Fair Empl.Prac.Cas. 1431, 36 Empl. Prac. Dec. P 34,948, 36 Empl. Prac. Dec. P 35,190, 53 USLW 2384 VANGUARDS OF CLEVELAND, et al., Plaintiffs-Appellees, v. CITY OF CLEVELAND, et al., Defendants-Appellees, and Local Number 93, I.A.F.F.,ntervenor-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William L. Summers (argued), Summers, Potts, Kampinski, Brucato, Tittle & White, Blaise A. Brucato, Cleveland, Ohio, for intervenor-appellant.
Edward R. Stege, Jr. (argued), Cleveland, Ohio, for Vanguards.
John D. Maddox, Dale F. Kainski, Irving Berger (argued), Cleveland, Ohio, for City of Cleveland.
Before KENNEDY and CONTIE, Circuit Judges; and COOK, District Judge. *
Intervenor-City of Cleveland Firefighters Association, Local # 93, I.A.F.F., AFL-CIO (Local 93) appeals from the district court's entry of a consent decree which contains a race-conscious, affirmative action plan to increase the number of Black and Hispanic officers within the Cleveland Fire Department. In this appeal, we must first determine whether Local 93 has standing to challenge the consent decree. If standing exists, we must then decide whether the district court abused its discretion by ruling that the decree was "a fair, reasonable and adequate resolution of the claims raised in this action."
On October 23, 1980, the Vanguards of Cleveland (Vanguards), an association of Black and Hispanic firefighters employed by the City of Cleveland, brought a class action under the thirteenth and fourteenth Amendments, 42 U.S.C. Secs. 1981 and 1983, and title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., to redress alleged discrimination by the Cleveland Fire Department in its promotion of minority firefighters. The complaint alleged that the City had maintained its discriminatory promotions policy by (1) the use of unfair written tests and seniority points, (2) the manipulation of retirement dates vis a vis the dates upon which promotional eligibility lists expired, and (3) the City's failure to hold an examination for promotions since April 1975. The complaint further alleged that only 4.3% of the firefighters who had attained the rank of Lieutenant or above were minorities. In their prayer for relief, the Vanguards sought, inter alia, a declaratory judgment that the City had engaged in discriminatory employment practices, an injunction prohibiting the continuation of such practices, and the institution of "an affirmative hiring and promotion program to eliminate the effects of past discriminatory practices."
Shortly after the complaint was filed, counsel for both parties initiated negotiations in an attempt to reach a settlement. In April 1981, Local 93 filed its motion to intervene as of right pursuant to FED.R.CIV.P. 24(a)(2). This motion was granted by the district court on June 5, 1981. Thereafter, Local 93 filed its complaint in which it alleged that it was "the representative of the members of the International Association of Fire Fighters Local # 93 all of whom are employees of the Cleveland Fire Department, any and all of whom may be affected by any decision which may be rendered in the instant lawsuit." The complaint also asserted that "[p]romotions based upon any criteria other than competence, such as a racial quota system, would deny those most capable from their promotions and would deny the residents of the City of Cleveland from maintaining the best possible fire fighting force."
In November 1981, the Vanguards and the City filed a proposed consent decree with the district court. On January 7-8, 1982, the district court held an evidentiary hearing to consider the intervenor's objections to the decree. At this time, the parties submitted stipulations of fact which indicated that the percentage of minority residents in the City of Cleveland was 46.9% in 1980, but that the percentage of minority firefighters occupying the ranks of Lieutenant or above was only 4.5%. At the close of the hearing, the district judge urged the parties to engage in "some intensive dialogue" in order to resolve their differences. At a second evidentiary hearing held on April 27, 1982, the district court indicated that no agreement had been reached and that the intervenor's primary objection to the decree was its use of racial quotas to alleviate the effects of past discrimination. The court later referred this matter to a magistrate for further negotiations.
On November 12, 1982, the magistrate reported that a tentative agreement among counsel for all parties had been reached. This agreement, however, was later rejected by the membership of Local 93. At that point, the Vanguards submitted another proposed consent decree which had been negotiated only by the Vanguards and the City. This decree contained an affirmative action plan for the promotion of Black and Hispanic firefighters which reads as follows:
7) Defendants shall as promptly as possible, but no later than January 31, 1983, certify promotional eligibility lists based upon the examinations administered in November 1981, heretofore impounded pursuant to Orders of the Court. Based upon those lists the following promotions shall be made no later than February 10, 1983;
a. Four promotions to the rank of Assistant Chief of Fire.
b. Sixteen promotions to the rank of Battalion Chief.
c. Thirty-two promotions to the rank of Captain of Fire.
d. Sixty-six promotions to the rank of Lieutenant.
8) All minority members who pass the November 1981 examinations for the ranks of Assistant Chief of Fire, Battalion Chief and Captain of Fire shall be so appointed.
9) The sixty-six promotions to the rank of Lieutenant shall be made on the basis of one non-minority to one minority appointee, based on the relative eligible list ranking of the individuals, a minority and non-minority appointment being coupled. Should there be less than thirty-three minority candidates selected for appointment, all sixty-six appointments shall be made, the balance to be filled by non-minority candidates. Any such shortfall as to minority appointments to the rank of Lieutenant shall be made up by promoting, upon the determination of the Defendants that promotion should be made, an equivalent number of minority candidates from the 1984 eligible list as provided for in paragraph 11 hereof, before any further appointments are made from that list.
10) The promotions to be made to the ranks of Assistant Chief of Fire, Battalion Chief and Captain of Fire shall be made by coupling the highest ranking non-minority and minority appointees, until all successful minority candidates have been appointed.
11) The eligible lists resulting from the 1981 examinations shall remain in effect until June 15, 1984. Defendants shall schedule additional promotional examinations in sufficient time to promulgate eligible lists to be certified as of June 16, 1984. The eligible lists resulting from the 1984 examinations shall remain in effect until December 15, 1985. Defendants shall schedule additional promotional examinations in sufficient time to promulgate eligible lists to be certified as of December 16, 1985. The eligible lists resulting from the 1985 examinations shall remain in effect for two years.
12) Seniority within grade shall continue to be determined by the date of appointment. For purposes of determining seniority ranking of persons receiving their appointment on the same day, seniority shall be determined by their respective ranking on the eligible list from which such promotion was made. For purposes of determining the seniority of those persons coupled for appointment in 1983 pursuant to this Decree, their seniority shall be based upon the order of their appointment from the eligible list regardless of their actual ranking on the eligible list. Any Lieutenants appointed in 1984 pursuant to the shortfall provision of Paragraph 9 shall be the most senior appointees from that list, and shall be ranked among themselves according to their respective ranking on the 1984 list.
13) In making promotional appointments in such numbers as are deemed appropriate by the City, and consistent with paragraph 15 hereof, Defendants shall maintain the following minority representation incident to the administration of the 1984 and 1985 promotional examinations provided for herein. Following the certification of the 1984 eligible lists the goals shall be 20 percent for Assistant Chief, 10 percent for Battalion Chief, 10 percent for Captain and 23 percent for Lieutenant during the duration of those lists. Following certification of the 1985 eligible lists the goals shall be 20 percent for the ranks above Lieutenant and 25 percent for the rank of Lieutenant during the duration of those lists. For the examinations after the 1981 examinations, if there are less than a sufficient number of minority candidates on the eligible lists to permit Defendants to meet the goals stated herein, promotions will be made by Defendants as determined by them to be necessary for the operation of the Division of Fire, and such promotions shall be made from eligible non-minority candidates and there shall be no shortfall carry-over to subsequent examinations.
14) Should more minority candidates qualify for promotion as a result of the three examinations referred to herein than would be subject to promotion by virtue of the terms of this decree such individuals shall be promoted based upon their eligible list ranking. No promotions shall be made or withheld based upon racial considerations other than as required to comply with the terms of this decree.
On January 19, 1983, the district court directed all parties who objected to the proposed consent decree to submit their objections in writing and to show cause why the court should not approve the proposed decree. Local 93...
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