Donaghy v. City of Omaha, 90-1780
| Decision Date | 07 August 1991 |
| Docket Number | No. 90-1780,90-1780 |
| Citation | 933 F.2d 1448 |
| Parties | 55 Fair Empl.Prac.Cas. 1547, 56 Empl. Prac. Dec. P 40,792, 59 USLW 2733 Thomas J. DONAGHY, Appellant, v. CITY OF OMAHA, A Municipal Corporation, Appellee. James Skinner, Chief of Police and P.J. Morgan, Mayor of Omaha. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Donald Earnshaw, Omaha, Neb., for appellant.
Thomas Mumgaard, Omaha, Neb., for appellee.
Before LAY, Chief Judge, and HEANEY and FRIEDMAN *, Senior Circuit Judges.
Thomas Donaghy, a sergeant with the Omaha Police Department (OPD), brought this section 1983 action against the City of Omaha, its mayor, and its chief of police. Donaghy, who is white, sought a promotion to lieutenant, but he was neither interviewed for nor promoted to the position. He claimed that the City discriminated against him by interviewing and promoting a black applicant, Anthony Hadley, who had more seniority but scored lower than Donaghy on tests the City used to rank job applicants. The City contended that it promoted Hadley to comply with a constitutionally valid, remedial consent decree. The district court agreed with the City and granted the City's motion for a directed verdict, setting aside a jury verdict that had awarded Donaghy $3,753 in damages. We affirm.
In 1979, an organization of black police officers, the Brotherhood of Midwest Guardians (Guardians), filed suit against the City of Omaha, its mayor, and its police chief. The Guardians sought injunctive relief and damages. They alleged, among other things, that the OPD had engaged in discriminatory hiring and promotion practices: (1) by using qualification tests that had a disparate impact on blacks, even though the tests had not been shown to be job-related or predictive of job performance; (2) by promoting white officers instead of more qualified black officers; (3) by limiting black officers' work assignments; (4) by refusing to recruit and hire blacks on an equal basis with whites; (5) by using other subjective hiring and promotion procedures that discriminated against black applicants and black officers; and (6) by refusing to allow black officers the same specialized training opportunities available to white officers. In an amended complaint Senior Judge Richard E. Robinson permitted two white officers who had ranked number one and two in competitive examinations for sergeant positions to intervene and contest the propriety of a temporary restraining order and preliminary injunction. Donaghy's union did not ask to intervene. The court subsequently denied the Guardians' motion for a temporary restraining order and the Guardians' motion for a preliminary injunction.
the Guardians alleged that although the OPD had used funds from the Law Enforcement Assistance Administration (LEAA) in a discriminatory manner, the LEAA had continued to fund the OPD, in violation of 42 U.S.C. Sec. 3766.
The City responded to the Guardians' complaint with a general denial. Discovery proceeded. In the summer of 1980, the United States Department of Justice indicated to the City that it had an interest in the case. In July 1980, the City told the court that the United States Department of Justice and the City were in the process of negotiating a consent decree regarding the OPD's employment practices. The City asked the court to grant it more time to respond to the Guardians' requests for additional discovery, and suggested that a consent decree between the United States and the City might "have a favorable impact" on the Midwest Guardians case. The court granted the City's request.
After at least three months of negotiations between the United States and the City, the United States filed a proposed consent decree with the court. At the same time, the United States filed an independent action against the City, its personnel director, and its chief of police. The United States alleged that the City, through its police department, had violated nondiscrimination provisions of 31 U.S.C. Sec. 1242 and 42 U.S.C. Sec. 3789d(c)(3). Specifically, the United States alleged that the City discriminated against blacks: (1) by not recruiting, hiring, assigning, and promoting blacks on the same basis as whites; (2) by using examinations and other qualification standards that had a disparate impact on blacks but which had not been properly validated as predictive of job performance; and (3) by not taking affirmative action to correct the effect of past discriminatory practices. The United States alleged that as of October 1980, only 4.3% of the OPD's 560 sworn personnel were black; that of the 170 officers hired since 1972 only 4 officers, or 2.4% were black; and that of the 42 police officers hired in 1978, none were black. 1 The United States sought injunctive relief prohibiting the OPD from continuing discriminatory practices and from refusing to take remedial measures.
The City did not file an answer to the United States' complaint. Instead, on October 23, 1980, Senior Judge Robinson consolidated the United States' case with the Midwest Guardians' case and entered a consent decree order in settlement of both cases. The intervenors neither signed nor objected to the consent decree.
The decree's stated purpose was to ensure that blacks were not disadvantaged by any of the OPD's past practices and policies, and to remedy these problems. Accordingly, paragraph 8 of the decree provided for, among other things, both interim and long-term goals:
Subject to the availability of qualified applicants, the City of Omaha will achieve a long term goal of hiring sufficient numbers of black sworn officers onto the OPD to result in an overall work force consisting of 9.5 percent black officers within seven years of the entry of this decree. In order to meet this long term goal, the City adopts the interim goals set out below for use on an annual basis in filling vacancies in sworn OPD positions.
(a) For the sworn entry position of police officer, the interim goal shall be to It is recognized that the City of Omaha has made substantial efforts to recruit black applicants for the sworn entry level position of police officer. The City shall maintain an active and continuing program of recruitment directed at increasing the number of black applicants for entry level positions to a level consistent with achieving this interim goal. The City shall solicit the suggestions of the Brotherhood of Midwest Guardians as to the most effective methods and techniques to be utilized in such a recruitment program.
fill at least forty percent (40%) of all vacancies with qualified black applicants until such time as black officers constitute six percent (6%) of the overall sworn work force of the OPD. Thereafter, the interim goal shall be to fill at least one-third (33 1/3%) of all vacancies with qualified black applicants until such time as black officers constitute eight percent (8%) of the overall sworn work force of the OPD. Thereafter, the interim goal shall be to fill at least twenty-five percent (25%) of all vacancies with qualified black applicants until the long term goal is achieved.
(b) For promotional sworn positions in the OPD, the interim goal shall be to appoint qualified blacks in at least the proportion that these groups are represented in the classes of employees eligible for promotion.
Thus, the consent decree required the City to increase the number of black officers in its 560-member force from approximately 24 to 53 over seven years.
About five years later, the United States and the Guardians claimed the City was not following the decree. They sought a preliminary injunction that would bar the OPD from hiring entry-level police officers based on written tests the City had administered. In a thorough memorandum opinion, then-District Judge C. Arlen Beam granted the injunction in part, ruling that the City's written tests had an adverse impact on black applicants and were not validated within the meaning of the Uniform Guidelines contained in 28 C.F.R. Sec. 50.14. 2 The court noted that the City's witness admitted that the tests had never been formally validated, and the court concluded that the City had not shown a relationship between an applicant's admission tests score and the applicant's job performance. The court enjoined the City from using the challenged written tests until those tests were validated. It further ordered the infusion of black candidates into the pool of entry level candidates to be interviewed. The court also urged the City to develop new testing and selection procedures consistent with the Uniform Guidelines, but acknowledged that the "Consent Decree does not require validation" and that "the City may use any selection process it chooses, provided that such process does not have an adverse impact upon black applicants."
Donaghy, who had entered the OPD in 1977, became a sergeant in 1983. The City posted a notice for lieutenant positions in 1987; the notice set forth the three-phase examination process that would determine the promotion eligibility list. 3 An applicant's Donaghy met the experience and training requirements for the lieutenant position and applied for the job. Based on his examination results, along with his credits for police service and college achievement, Donaghy ranked number seven on the final eligibility list, which was to last for two years.
performance during the examination process was important to an applicant's rank on the final promotion eligibility list, but not dispositive. The notice also stated that weight would be given to an applicant's experience and education, and that some applicants would be "referred based on the City's current Affirmative Action Plan."
Three lieutenant positions opened in April 1988. At this time only 3.2% of the lieutenants were...
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