Middleton v. City of Flint, Mich.

• Decision Date: 28 October 1996
• Docket Number: Nos. 93-1367,93-1368,s. 93-1367
• Citation: 92 F.3d 396
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 962, 69 Empl. Prac. Dec. P 44,354, 65 USLW 2176 Charles MIDDLETON; W. Osmund Kelly, III; Brian Sepanak; Bruce Sepanak; Stephen Hill; Gregory Doerr; Barry Saunders; Robert Lorey; Maynard Newman; James McLellan; Thomas Hilgendorf, Plaintiffs-Appellants, Cross-Appellees, v. The CITY OF FLINT, MICHIGAN, Defendant-Appellee, Cross-Appellant, The Flint Police Officers Association, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 396

92 F.3d 396

71 Fair Empl.Prac.Cas. (BNA) 962,

69 Empl. Prac. Dec. P 44,354, 65 USLW 2176

Charles MIDDLETON; W. Osmund Kelly, III; Brian Sepanak;

Bruce Sepanak; Stephen Hill; Gregory Doerr; Barry

Saunders; Robert Lorey; Maynard Newman; James McLellan;

Thomas Hilgendorf, Plaintiffs-Appellants, Cross-Appellees, v. The CITY OF FLINT, MICHIGAN, Defendant-Appellee, Cross-Appellant, The Flint Police Officers Association, Defendant.

Nos. 93-1367, 93-1368.

United States Court of Appeals, Sixth Circuit.

Argued May 10, 1994.

Decided Aug. 6, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 28, 1996.

Gregory T. Gibbs (argued and briefed), Michael J. Kelly (briefed), Flint, MI, for Plaintiffs-Appellants, Cross-Appellees.

Donna R. Nuyen (argued), Terrence J. Miglio, Christopher M. Murray (briefed), Keller, Thoma, Schwarze, Schwarze, Dubay & Katz, Detroit, MI, for Defendant-Appellee, Cross-Appellant.

Donna R. Nuyen (argued), Keller, Thoma, Schwarze, Schwarze, Dubay & Katz, Detroit, MI, Bernard Feldman, Troy, MI, for Defendant in No. 93-1367.

Before: KRUPANSKY, BOGGS, and SUHRHEINRICH, Circuit Judges.

BOGGS, Circuit Judge.

The city of Flint, Michigan, adopted a plan in 1985 requiring that 50% of all police officers who are promoted to the rank of sergeant be members of specified "minority" groups. This action under 42 U.S.C. §§ 1983 and 1981 was brought by white police officers who have been passed over at least once ¹ for promotion because the plan required that minorities be promoted ahead of them to maintain the designated numerical balance. The district court granted summary judgment to the city, and the plaintiffs timely appealed. We hold that the city has not met its heavy burden of proving that a compelling state interest necessitates its racial quota system, nor has it shown that the quota system is narrowly tailored to serve such an interest. We reverse the district court's decision and remand the matter for further proceedings consistent with this opinion.

I

A. The 1973 Holliman v. Price Decision

For more than twenty years, federal courts in the Eastern District of Michigan have considered charges that the hiring and promotion policies and practices of the Flint police department have been tainted by discrimination. In Holliman v. Price, 1973 WL 280 (E.D.Mich. Jan. 3, 1973), minority plaintiffs challenged two elements of the police department's entry-level hiring policies. These requirements were that successful applicants (1) have sixty hours of college credit in the field of police administration or a directly related field, or have equivalent law-enforcement experience; and (2) satisfactorily complete a twenty-nine-item written test. The Holliman court, agreeing with the plaintiffs that the two challenged requirements were invalid, found that a validation study that the city had conducted "was totally insufficient by any professional standards" because it had been based on too small a sampling population. Id.at * 8.

Consequently, "in view of the well documented, historical underemployment of blacks in Flint's Department of Police," id. at * 10, the court granted plaintiffs' request for a preliminary injunction that compelled the city to proceed with plans to hire twenty new patrol officers. In addition, it ordered the city to reconsider previously rejected applicants for entry-level police positions, this time without assessing their qualifications based on the invalidated hiring criteria. Despite the relief granted, the court also stated that "[w]e decline at this time, however, to order any particular quota in [the] hiring of blacks vis-a-vis whites or other non-black minorities." Ibid. (emphasis added).

B. The 1977 Alfaro v. Suber Decision

Four years later, in Alfaro v. Suber, Civ. Action No. 613 (E.D.Mich. May 18, 1977), minority applicants again challenged the police department's hiring policies and practices. The court found that, prior to 1973, "in the entire history of Flint, a total of only twenty-four Blacks had ever been hired" to serve as police officers. Slip op. at 5. On the other hand, 15 of 29 new hires (52%) during the 1972-73 year were minority members; 2 of 8 new hires the following year were minorities; and 56 of 105 (53%) newly hired officers in 1974-75 were minorities. Ibid.

In addition to considering the plaintiffs' suit over the police department's hiring policies and practices, the district court also ruled on their challenge to the department's promotion policies and practices. The court found that, in 1973, 229 applicants had taken the department's written examination for promotion to sergeant; 87% of the white applicants achieved the passing score of 70 or higher, and all 7 of the Black applicants passed. Moreover, the two racial groups' average scores had been virtually identical, though the court noted that "the minority sampling was too small to be predictive." Slip op. at 10.

In response to an earlier lawsuit in state court, there had been a stipulation and agreement between the city and the groups representing minority police officers in which the city had committed itself to promoting one minority member to sergeant for every four "non-minority" members that it promoted. It made its promotions by creating two separate promotion-eligible lists, one for minorities and one for non-minorities, each based on a composite score that aggregated the test results and a maximum of fifteen seniority points for up to fifteen years' service on the force. In addition, the city required that promotion-eligible candidates have either four years' prior experience as a Flint police officer, or three years' experience as an officer and one year of college. In 1975, a new promotion test was administered to 180 applicants, and 138 white officers passed. Of the 4 Black officers who took the test, 3 passed. All 3 of the Blacks who passed were promoted, pursuant to the stipulation.

In reviewing the record before it, the Alfaro court held that there had been a "gross disparity between employment levels of Black and White persons prior to 1973," providing "compelling evidence that the employment practices in the Police department have had a discriminatory impact." Slip op. at 15. However, the court found insufficient evidence to sustain plaintiffs' claims that the department's minority-recruitment efforts were discriminatory. Similarly, "[t]he 1973 and 1975 sergeants examination [sic] were not shown to have a statistically significant disparity." Id. at 17. The court concluded that, although the police department had clearly discriminated in its hiring policies and practices prior to 1973,

[s]ince that time, it is also apparent that the City has attempted to remedy many of the practices which caused the disparate impact and has since increased minority representation in the Police Department. Whether these gains have been the result of court action or pressures from federal funding agencies is not entirely certain.

Because of the general improvement in minority representation in the last three and one-half years, the Court does not believe that imposition of a quota for hiring is necessary. However, to assure that improvement continues, the Court will retain jurisdiction of the case for five years.

Id. at 20 (emphasis added). The court also prevented the police department from considering more than five years of seniority in applications for promotion. Id. at 18.

C. The 1983 Election and the 1984 HRC Hearings

In 1983, the voters of Flint elected a new city government. Mayor James Sharp ran on a platform that included pledges to implement "affirmative action plans" that would increase the city's minority hiring and promotion efforts.

In 1984, public hearings were conducted by the Flint Human Relations Commission ("HRC"). The HRC took testimony from several witnesses. Richard Dicks, a fourteen-year police veteran who had been an unsuccessful plaintiff in Alfaro and who had been named Flint's Deputy Administrator for Public Safety by Mayor Sharp, testified. Flint City Council President Melvin McCree reported the results of the City Council's 1981 and 1983 investigations into police hiring and promotion policies, and he conveyed a Council committee recommendation that the city adopt a plan for minorities to be 65% of new police officers. Furthermore, the city's new police chief, Miles White, who had been appointed by Mayor Sharp, and other political figures provided anecdotal testimony confirming contentions of past discrimination in police hiring and promotions. However, Chief White also stated at the hearing that the police department had undertaken an expensive effort in the 1960s to recruit at Black colleges across the nation; the effort "failed to produce significant numbers of recruits."

1. Dr. Bendick's Testimony

Important testimony came from Dr. Marc Bendick, a labor-force analyst employed by the city, who reported that minorities comprised 46.3% of Flint's 1980 population and 45% of Flint's general labor force in 1984. After allowing for demographic, age, and education factors, for the tendency of census-takers to undercount minority members, for the city's tendency to employ a certain proportion of its entry-level officers from neighboring communities outside Flint where minority groups are not as populous, and for "the propensity of minorities to apply for civil service jobs at a somewhat higher rate than for jobs in the private business sector," Dr. Bendick determined, in a 1984 report, that minority persons should have comprised 39.6% of Flint's police officers in 1984; however, only 19.1% of the force was actually comprised of minorities at the time. Dr. M. Bendick, Minority Hiring and Promotion in the Flint Police Dept. 2, 7 (Apr. 1984). He noted that most Flint police officers had been hired in 1978 or earlier. Id. at 4.

Dr. Bendick also opined that 31.1% of Flint's police sergeants in 1984 should have been minorities, although only 10.8%...