N.A.A.C.P. v. City of Mansfield, Ohio

• Decision Date: 18 January 1989
• Docket Number: Nos. 87-3216,87-3287,s. 87-3216
• Citation: 866 F.2d 162
• Parties: 48 Fair Empl.Prac.Cas. 1444, 48 Empl. Prac. Dec. P 38,580, 57 USLW 2467 N.A.A.C.P. (National Association for the Advancement of Colored People); Walter Harris, on behalf of himself and all others similarly situated, Plaintiffs- Appellants, Cross-Appellees, v. CITY OF MANSFIELD, OHIO; William Friend, in his individual capacity and/or as Service Safety Director of Mansfield, Ohio; et al., Defendants-Appellees, and City of Mansfield, Ohio, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 162

866 F.2d 162

48 Fair Empl.Prac.Cas. 1444,

48 Empl. Prac. Dec. P 38,580, 57 USLW 2467

N.A.A.C.P. (National Association for the Advancement of Colored People); Walter Harris, on behalf of himself and all others similarly situated Plaintiffs- Appellants Cross-Appellees, v. CITY OF MANSFIELD, OHIO; William Friend, in his individual capacity and/or as Service Safety Director of Mansfield, Ohio; et al., Defendants-Appellees and City of Mansfield, Ohio, Defendant-Appellee, Cross-Appellant.

Nos. 87-3216, 87-3287.

United States Court of Appeals Sixth Circuit.

Argued Feb. 17, 1988.

Decided Jan. 18, 1989.

Edward L. Gilbert Co., LPA (argued), Akron, Ohio, Nina M. Najjar, James H. Banks, Columbus, Ohio, for appellants.

Edward C. Kaminski, James D. Kurek (argued), Buckingham, Doolittle & Burroughs, Akron, Ohio, Charles D. Lynch, Asst. Law Director, Louise Busch, In her individual capacity and/or as Chairman of the Civil Service Com'n, Terry Kilgore, In his individual capacity and/or as Past Chairman of the Civil Com'n, Mansfield, Ohio, for appellees.

Before KEITH, MARTIN and RYAN, Circuit Judges.

RYAN, Circuit Judge.

This is an interlocutory appeal and cross-appeal from a pretrial order of a district court granting in part and denying in part plaintiffs' petition for temporary injunctive relief in a case alleging racial discrimination in the process of hiring defendant City's firemen and policemen.

We affirm the district court's order and remand the case for further proceedings.

I.

On March 21, 1986, plaintiffs-appellants N.A.A.C.P. and Walter Harris ("plaintiffs") filed a class action against defendant-appellee/cross-appellant City of Mansfield, Ohio, and various city officials ("defendants)". ¹ Plaintiffs' claim is that the testing procedures used by the City to establish eligible candidates for its police and fire departments are racially discriminatory in violation of 42 U.S.C. Secs. 1981, 1983, 1985, and 1986. On February 5, 1987, plaintiffs filed a motion for a preliminary injunction to restrain the defendants from hiring any new policemen or firemen from the City's current eligibility list. The district court refused to enjoin additional hiring by the police department finding, inter alia, ² "that the plaintiffs have failed to demonstrate a likelihood of success on the merits of their Section 1981 action with respect to the hiring practices employed by the City of Mansfield and the police department for entry level patrolmen positions." However, after finding "that the plaintiffs have demonstrated a strong likelihood of success on the merits of their Section 1981 claims with respect to the firefighter ... eligibility list, and will suffer irreparable injury if ... the city make[s] appointments from the current ... list," the court partially granted plaintiffs' motion to enjoin additional hiring by the fire department. Specifically, the court ordered the fire department to refrain from hiring any more than three new firefighters. In deciding not to enjoin the fire department entirely from hiring any more firefighters, the court concluded that "defendants have shown that harm to others and a countervailing of public interest weigh against the issuance of the injunction" as requested.

Both parties have appealed the court's decision. The central issues on appeal are (1) whether the district court's subsidiary factual determinations are clearly erroneous, and (2) whether the court abused its discretion by issuing the partial preliminary injunction.

We hold that the district court's findings of fact are not clearly erroneous and that the court did not abuse its discretion by not enjoining the City of Mansfield from filling vacancies in its police department. However, with respect to the injunction relating to firefighter positions, we conclude that a remand to the trial court is necessary because subsequent events have cast doubt upon the magnitude of the potential "harm to others" and the "countervailing public interest" that originally militated against a broader injunction.

II.

Plaintiffs claim the testing procedures employed by the City of Mansfield in hiring policemen and firemen are a vehicle for discrimination. In particular, they challenge the written tests that were administered by the City's Civil Service Commission (CSC) and given to police and fire department applicants on March 22, 1986, the agility tests subsequently given to firefighter applicants who successfully completed the written test, the scoring of all three tests, and the lists of policemen and firefighter applicants who were certified by the CSC as being eligible for available positions.

The City of Mansfield is located in Richland County in north central Ohio. According to the 1980 census, Mansfield has a total population of 53,927, and a black population of 8,653 (sixteen percent). Richland County has a total population of 131,205, and a black population of 9,373 (seven percent). Thus, ninety-two percent of the blacks in Richland County live in the City of Mansfield. Statewide, blacks comprise 6.1% of the civilian labor force, and 6.1% of the aggregate police and fire positions.

A.

The police department eligibility test is a written, multiple-choice examination consisting of 200 questions. It was composed by the Center for Criminal Justice (CSC) at Case Western Reserve University. Applicants who answer seventy percent of the questions correctly pass and may thereafter receive extra credit, in an amount equal to twenty percent of the applicant's score, for general college credit, law enforcement college credit, completion of a basic police training course, or professional law enforcement experience. The applicant must document his or her entitlement to the extra credit. The CSC scores the exam, computes any applicable extra credit points, and establishes the eligibility list, ranking applicants according to their cumulative scores. If there is an opening in the police department, the CSC certifies the names of the top three candidates from the eligibility list to the department for further review, including a personal interview, a psychological evaluation, and a polygraph test.

B.

The fire department's test is somewhat different. While it includes a written, multiple-choice examination comprised of 200 questions composed, administered, and scored by the CSC, it also includes an agility test administered by fire department officials. Only those applicants who earn a score of seventy percent on the written test are eligible to take the agility test. Sixty percent of an applicant's overall score is based on his score on the written test, and forty percent is based on his agility test score.

The agility test consists of nine events that simulate the kinds of physical exertions a firefighter might encounter in the course of his duties. ³ The highest score in each of the final seven events goes to the applicant with the fastest time. The remaining scores are adjusted on a "curve," proportionately to the highest score. However, there is no written standard for the scorer to use in making proportionate differentiations between the applicants' scores. Moreover, the department has no procedure by which an individual might contest the score he or she receives.

The department forwards the agility test results to the CSC for totaling. An applicant can earn an additional number of points equal to twenty percent of his combined score upon proof of military service. If there is an opening in the fire department, the CSC certifies the names of the top three candidates from the eligibility list for further review, including a personal interview.

C.

The CSC administered both the police and firefighter exams on March 22, 1986. A total of one hundred fifteen persons, fourteen blacks and one hundred one whites, took the police examination. Seven blacks and seventy-six whites passed the test. A total of ninety-six persons took the firefighter exam, ten blacks and eighty-six whites. One black and thirty-eight whites passed the test. Plaintiff Harris, the only black to pass the firefighter written exam, subsequently received the lowest score of all the firefighter applicants who performed the agility test. The CSC thereafter drew up the respective departmental eligibility lists.

At the time of the hearing on plaintiffs' motion for a preliminary injunction, the Mansfield police department had eighty-four authorized positions, eighty-two of which were funded. Of these eighty-two positions, seventy-seven were manned, five by blacks and seventy-two by whites. Thus, there were five available police positions. The fire department had ninety-two authorized positions, ninety of which were funded. A total of eighty-seven of these positions were manned by eighty-six whites and one black. Thus, there were three available firefighter positions. Apparently, if all the vacancies in both departments were filled solely from the CSC's March 1986 eligibility lists, no additional blacks would be hired in either department.

The City indicated a desire to fill all eight positions as soon as possible by certifying applicants from the respective eligibility lists, pursuant to the prevailing CSC procedures. Plaintiffs request for a preliminary injunction sought to enjoin the City, the police department, and the fire department from certifying any names from the current lists and from appointing any individuals to the police or fire departments.

In an extensive written opinion, the district court considered plaintiffs' claims for injunctive relief against the police and fire departments separately. The court reasoned that the rationale for the need each department had for filling its respective positions were separate and unrelated, and that the departments' testing procedures were distinguishable. After separately applying this court's four-factor analysis for determining whether to grant a preliminary injunction, see, e.g., Mason County Medical Ass'n....