Afro Am. Patrolmen's League v. Duck

• Decision Date: 26 September 1974
• Docket Number: Nos. 74-1135,74-1266 and 74-1267,74-1136,s. 74-1135
• Citation: 503 F.2d 294
• Parties: 8 Fair Empl.Prac.Cas. 1124, 8 Empl. Prac. Dec. P 9697 AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Fraternal Order of Police Lodge #40, Applicant for Intervention-Appellant, v. Robert DUCK, Police Chief of Toledo, et al., Defendants-Appellees. AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Toledo Police Patrolmen's Association, Applicant for Intervention-Appellant, v. Robert DUCK et al. AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs-Appellees, v. Robert DUCK et al., Defendants-Appellants, John Bryant et al., Defendants Intervenors. AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs-Appellees, v. Robert DUCK et al., Defendants, John Bryant et al., Applicants for Intervention-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 294

503 F.2d 294

8 Fair Empl.Prac.Cas. 1124, 8 Empl. Prac.

Dec. P 9697

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Fraternal Order of Police Lodge #40, Applicant for Intervention-Appellant, v. Robert DUCK, Police Chief of Toledo, et al., Defendants-Appellees.

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs, Toledo

Police Patrolmen's Association, Applicant for Intervention-Appellant, v. Robert DUCK et al.

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs-Appellees, v. Robert DUCK et al., Defendants-Appellants, John Bryant et

al., Defendants Intervenors.

AFRO AMERICAN PATROLMENS LEAGUE et al., Plaintiffs-Appellees, v. Robert DUCK et al., Defendants, John Bryant et al., Applicants for Intervention-Appellants.

Nos. 74-1135, 74-1136, 74-1266 and 74-1267.

United States Court of Appeals, Sixth Circuit.

Argued June 14, 1974.

Decided Sept. 26, 1974.

Gerald S. Lubitsky, Toledo, Ohio, for Fraternal Order of Police Lodge No. 40; Richard M. Neller, Toledo, Ohio, on brief.

George R. Royer, Toledo, Ohio, for applicant-intervenor on brief for Toledo Police Patrolmen's Ass'n.

John J. Burkhart, Chief Counsel, Toledo, Ohio, on brief for Robert Duck, and others.

Merritt W. Green, II, Toledo, Ohio, on brief for Afro-American Patrolmens League, and others.

Feinberg, Meyers, Schumacher & Schumacher, by Robert H. Schumacher, Minneapolis, Minn., for Minneapolis Police Federation of Minneapolis, Minn., for amicus curiae.

George R. Royer, Toledo, Ohio, for Ohio Union of Patrolmen's Ass'n and Toledo Police Patrolmen's Assoc., Inc.

Before McCREE, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This civil rights action is concerned with requirements for promotion within the police department of Toledo, Ohio. The plaintiffs in the district court were two black patrolmen and an association open to all members of the Toledo safety forces, with a membership composed largely of black policemen. Both of the individual plaintiffs have taken examinations for promotion to sergeant in the Toledo Police Department on a number of occasions, and each has passed the examination several times. However, neither of the individual plaintiffs has been promoted to sergeant. The defendants are the chief of police, the city manager, the safety director, to members of the Toledo Civil Service Commission and its executive director. The complaint alleges violations of 42 U.S.C. 1981 and 1983 and 42 U.S.C. 2000d in addition to denial of constitutional rights guaranteed by the Thirteenth and Fourteenth Amendments.

Three separate groups sought to intervene in the action. The court denied intervention to the Fraternal Order of Police and the Toledo Police Patrolmen's Association, two groups which claimed to have a 'joint exclusive' right to represent Toledo patrolmen in bargaining with the City of matters concerning wages, conditions of employment, 'and otherwise.' This right of representation exists by virtue of a provision of the Toledo Municipal Code. The court granted intervention to 15 white patrolmen who had passed the most recent line sergeant examination and had been chosen for promotion from patrolman to sergeant prior to the dates this suit was filed.

Following several days of proof, the district court concluded that the plaintiffs had carried their burden of demonstrating that discriminatory elements were present in the practices followed by the Toledo Police Department in promoting to command positions and that it was necessary to eliminate the discriminatory features of the system in order to avoid the perpetuation of a racial imbalance which was found to exist. The court specifically found that (1) a rule requiring a patrolman to have five years service before becoming eligible to take the examination for sergeant and two years of service in each succeeding rank before becoming eligible for examination for the next higher rank, and (2) a rule which gave a 'bonus' for seniority, had a discriminatory effect upon promotion in the Toledo Police Force. The opinion of the district court is reported at 366 F.Supp. 1095.

The original defendants and the 15 intervening defendants have appealed, as have the two organizations which were denied intervention. All appeals were heard by a single panel of the court on the same day and will be disposed of in this opinion.

The unsuccessful applicants for intervention maintain that as statutory bargaining agents for all patrolmen they were entitled to intervention as a matter of right under Rule 24(a), Fed.R.Civ.P., or in the alternative, should have been permitted to intervene under Rule 24(b). It is alleged that the district court order enjoining all promotions and appointments under existing practices will require the City of Toledo to breach its collective bargaining agreement with the representatives of the patrolmen. It is also contended that the Fraternal Order of Police should be permitted to assert the right of all the citizens of Toledo to have a high quality police department. We do not believe that either of the organizations established that it qualified for intervention as a matter of right under Rule 24(a). The rights of the patrolmen who are members of the Fraternal Order of Police and the Toledo Police Patrolmen's Association were adequately represented in this action by the existing parties and the 15 white patrolmen who were permitted to intervene. An applicant for intervention has the burden of showing that representation by existing parties is inadequate. Edmondson v. State of Nebraska ex rel. Meyer, 383 F.2d 123, 127 (8th Cir. 1967); 3B Moore's Federal Practice, para. 24.09-1(4). The provisions of the collective bargaining contract must give way to the constitutional requirement of equal protection, and the fact that these applicants have such agreements with the City of Toledo does not establish that they are entitled to intervention as a matter of right. See Southern Illinois Builders Association v. Ogilvie, 471 F.2d 680, 687 (7th Cir. 1972). Intervention under Rule 24(b) is addressed to the sound discretion of the trial court. Hatton v. County Board of Education of Maury County, Tennessee, 422 F.2d 457, 459 (6th Cir. 1970). We find no abuse of discretion in the denial of intervention in this case.

The defendants challenged the right of the plaintiffs to proceed in a class action under Rule 23, Fed.R.Civ.P. It is their contention that the possible class consists of no more than the 35 minority group members who were eligible to take the most recent examination for line sergeant or the 17 members of that group who actually took the examination. In their complaint the plaintiffs sought to represent a class 'composed of all present and future minority members of the Toledo Police Department who have been discriminated against by Defendants' use of unvalidated and culturally biased tests, practices, and procedures, . . ..' The district court certified the class to include all present and future minority police officers, and we hold that this class is so numerous as to make joinder of all impracticable. It seems evident that the plaintiffs adequately represent the members of this class and there is no claim that questions of law of fact common to all do not exist in the case or that the claims of the representatives are not typical of those of the class. We have held that class actions are properly utilized in cases involving alleged discrimination in employment practices. Manning v. International Union, UAW, 466 F.2d 812 (6th Cir. 1972), cert. denied sub nom., Manning v. General Motors Corporation, 410 U.S. 946, 93 S.Ct. 1366, 35 L.Ed.2d 613 (1973). As this court pointed out in Tipler v. E. I. duPont deNemours & Company, 443 F.2d 125, 130 (1971), a suit by a single employee which is not brought as a class action 'is perforce a sort of class action for a fellow employee similarly situated' when it attacks the employment practices of the employer on grounds of discrimination. We conclude that the district court correctly determined that this case should proceed as a class action.

The defendants have seriously maintained in the trial court and on appeal that the plaintiffs should be barred from obtaining relief in this action by the equitable doctrine of laches. It is claimed that the plaintiffs made no protest or complaint at the time the most recent examination for line sergeant was given or when the eligibility list was posed, but waited until a day or two before the appointments were to be made before filing this action. We fail to see how any of the original defendants were prejudiced in any way by this delay on the part of the plaintiffs. Both a lack of diligence on the part of the plaintiffs and prejudice to the defendants is necessary to justify a court's refusal to consider a claim on the basis of laches. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); Gardner v. Panama Railroad Company, 342 U.S. 29, 31, 72 S.Ct. 12, 96 L.Ed. 31 (1951). Although the 15 intervening defendants asserted that they were prejudiced by the delay in bringing the action since they had spent many hours studying for the examination for sergeant which was given in April 1973, had successfully passed the examination and earned a place on the eligibility list and ultimately been chosen for promotion, we cannot hold that a delay of less than four months in filing suit to vindicate constitutional rights is so unreasonable as to require its dismissal. However, we agree with the district court that the situation with respect to lieutenants and captains is different. Upon a balancing of the equities, the district court found that appointments made from old promotion lists to the rank of lieutenant and captain should be permitted to stand. We find no abuse of discretion in the district court's treatment of the issue of laches. Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 534, 76 S.Ct. 946, 100 L.Ed. 1387 (1956).

On the merits of the case the...