802 F.Supp. 1361 (W.D.N.C. 1992), C-C-91-158, Hayes v. City of Charlotte, North Carolina

Docket NºC-C-91-158-P.
Citation802 F.Supp. 1361
Party NameRonald M. HAYES, Randy L. Hagler, Darrell A. Price, David H. Holland, Robert A. Holl, Oswald D. Holshouser, Raymond T. Carlton, S. Vance Elstrom, and Mark E. Corwin, Plaintiffs, v. CITY OF CHARLOTTE, NORTH CAROLINA, Defendant, v. NORTH STATE LAW ENFORCEMENT OFFICERS ASSOCIATION, Intervenor Defendant.
Case DateSeptember 01, 1992
CourtUnited States District Courts, 4th Circuit, Western District of North Carolina

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802 F.Supp. 1361 (W.D.N.C. 1992)

Ronald M. HAYES, Randy L. Hagler, Darrell A. Price, David H. Holland, Robert A. Holl, Oswald D. Holshouser, Raymond T. Carlton, S. Vance Elstrom, and Mark E. Corwin, Plaintiffs,





No. C-C-91-158-P.

United States District Court, W.D. North Carolina, Charlotte Division.

Sept. 1, 1992

Louis L. Lesesne, Jr., Lesesne & Connette, Charlotte, N.C., for plaintiffs.

Jim D. Cooley, Womble Carlyle Sandridge & Rice, Henry W. Underhill, Stephanie H. Webster, James E. Ferguson, Ferguson Stein Watt Wallas, Adkins & Gresham, Charlotte, N.C., for defendants.


ROBERT D. POTTER, District Judge.

THIS MATTER is before the Court on Plaintiffs' Motion for Partial Summary Judgment. A hearing was held in Charlotte, North Carolina, on July 14, 1992.

The Plaintiffs were represented by Louis L. Lesesne, Jr., Esquire. The Defendant City of Charlotte (hereinafter "City") was represented by Jim D. Cooley, Esquire. Intervenor Defendant North State Law Enforcement Officers Association (hereinafter "North State") was represented by James E. Ferguson, II, Esquire and Geraldine Sumter, Esquire.


The Charlotte Police Department initiated a promotion process for sergeants effective November 5, 1987 which consists of three parts: a written examination, a promotion potential rating evaluation, and an oral interview board. Each part is equally important; an applicant for promotion may receive no more than 33 1/3 points for any part with the maximum score being 100 points. This process has been approved by the Court and no black officer has contended that the process discriminates against blacks. After passing the written examination, each applicant is assessed by the applicant's first and second level supervisors. Those supervisors then complete a "Promotional Potential Rating Form" and assign the applicant a score for this phase. The applicant next appears before a board for an interview and is assigned a score for that part of the promotion process. Those

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applicants who complete all three phases of the promotion process are placed on an eligibility list. All promotions to the rank of sergeant are made from this list in accordance with Charlotte Police Department General Order No. 18 which provides in Part IIB:

B. For both the Captain's and the Sergeant's promotional process, the combined score from all phases of the process will determine the order of consideration for candidates, but not necessarily the order of promotions.

After receiving recommendations from his subordinates, D.R. Stone, the City's Chief of Police, (hereinafter "Stone"), makes the final decision on promotions. (City's Memo in Response to Plaintiffs' motion for Summary Judgment by Defendant City of Charlotte, p. 5). As a result of a lawsuit filed by the North State Law Enforcement Officers Association (North State Law Enforcement Officers Association, et al. v. The City of Charlotte, North Carolina, Civil Action No. 2938) a consent order was filed in July 1974 by the Honorable James B. McMillan, which was amended by consent orders dated May 1, 1979 and July 2, 1990. Paragraph 5 of the consent order in connection with the promotion of sergeants reads as follows:

5. Effective immediately at least six (6) of the next fifteen (15) promotions to the rank of Sergeant shall consist of qualified black Patrolmen. In the event that the next fifteen (15) promotions are not made simultaneously, the promotion of qualified black officers to meet this goal shall be made at the rate of one (1) qualified black officer for every two (2) qualified white officers. Thereafter, the percentage of qualified black officers promoted to the rank of Sergeant during each successive six-month period shall conform as nearly as possible to the percentage that black Patrolmen comprise of all Patrolmen employed by the Police Department at the commencement of each such six-month period, until the percent of black Sergeants comprises at least twenty percent (20%) of the total number of Sergeants employed by the Police Department. The first of the foregoing six-month periods shall commence as of the first day of the month immediately following the month in which the last of the next fifteen (15) promotions to Sergeant is made.

(Emphasis added).

Reports filed with the Court since the original order 17 years ago indicate that the goal of 20% of the total number of sergeants employed by the police department being black was reached in 1987. (Stone Deposition, Exh. 2).

In this case the sergeant promotion roster was comprised of 74 names, ranked 1 through 74 (Ex. 1, Stone Depo. Part 1--names omitted).

Charlotte Police Department

In their complaint, filed May 23, 1991, Plaintiffs allege that each of the Plaintiffs are now, and were in February of 1991, employed as police officers by the Defendant City of Charlotte. The Plaintiffs further allege that in February of 1991, the City promoted 21 then City police officers to the rank of sergeant. Each of the Plaintiffs, all of whom are white, applied for promotion. None of the Plaintiffs were promoted and their complaint asserts that they were passed over solely because of their race. As such, the Plaintiffs allege that the actions of the City violate the Due Process Clause and the Equal Protection Clause of the United States Constitution. The Plaintiffs also state claims under Title 42, United States Code, section 1983. Further, the Plaintiffs assert that as a result of the Defendant's illegal allegations the Plaintiffs have been damaged.

In its answer, the City denies that each Plaintiff was qualified to be promoted and that it promoted other officers rather than the Plaintiffs solely because the Plaintiffs are white. Further, the City denies that it acted in violation of either the United States Constitution or statutory prohibitions. In defense of its decision not to promote the Plaintiffs, the City asserts four defenses. The City first asserts that even absent the consideration of race as a factor in the promotion process, none of the

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Plaintiffs would have been promoted to sergeant. Second, the City asserts that its actions were compelled by the successive Consent Orders entered by Judge McMillan in the North State case. However, as will be discussed below, the City has abandoned its reliance on the North State Consent Order. Third, the City asserts that its use of race as a factor in the promotion process is narrowly tailored to meet the City's compelling interest in remedying the effects of past underrepresentation of blacks at the rank of sergeant in the City police force. Finally, and in the same fashion, the City asserts that its use of race as a factor in the promotion process is narrowly tailored to meet the City's compelling governmental interest in maintaining an integrated police force conducive to maintaining good community relations with all segments of the City's population.

In February 1991 Stone selected 21 persons for promotion to sergeant. He selected the first eighteen in the order of their rank on the eligibility list, one of whom was black. Because Stone understood he had to select four black officers out of 21 promotions, he skipped over a number of white officers to the black officers ranked 29th, 62nd, and 74th. Of the nine Plaintiffs, two were ranked 21st and 25th on the eligibility roster, and thus ahead of the black officer number 29, who was selected. The remaining seven white Plaintiffs were all ranked ahead of the black officers numbered 62 and 74 who also were selected for promotion. As to rank No. 29 on the list of qualified candidates, Stone testified there was no reason for her promotion other than her race and sex. (Stone Depo. pp. 20-28). Stone further testified that Nos. 62 and 74 probably would not have been promoted had they been white. (Stone, Depo. 28-30).


Qualifications of Plaintiffs

Contrary to the City's denial of this fact, Stone testified that with one exception, each of the Plaintiffs were qualified to be promoted to sergeant. The one exception was No. 21 on the eligibility list, whom Stone believed unqualified for promotion because of his disciplinary problems. The exact testimony of Chief Stone appears on pp. 19, 23-25 as follows:

Q. Now, you say the third--well, was there any other person who was passed over because of discipline?

A. Yes.

Q. And would that have been No. 21?

A. Yes.

Q. Anyone else?

A. Using the same phraseology of "passed over"?

Q. Right.

A. No.

Q. Okay. Let me ask you--you've seen the Answer that was filed on the City's behalf in this lawsuit, have you not?

(Counsel handed document to witness.)

(Witness reviewing document).

MR. COOLEY: Is there a particular part of it that you want to refer him to?

MR. LESESNE: Well, first--in just a second, I do. I want to see if he's seen it first.

A. Yes.

Q. Did you see it before it was filed with the Court?

A. I don't know.

Q. Okay. Did you also see a copy of the Complaint which the plaintiffs filed with the lawsuit, this document?

(Counsel handed document to witness.)

A. Yes.

Q. Would you look at paragraph 13 of the Complaint, this document here (indicating). And it alleges that, "Each plaintiff applied and was fully qualified to be promoted to Sergeant"; is that correct?

A. Yes, sir.

Q. And would you look at paragraph five of the [P. 24] Answer. It think it's five. I'm sorry, paragraph four of the Answer. Do you know why the City would deny that the plaintiffs were fully qualified to be promoted to Sergeant?

MR. COOLEY: He's already told you on No. 21.

MR. LESESNE: Well', I'd like to ask--get his answer, not yours.


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A. Would you repeat the question?

Q. I understood your...

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