Alexander v. City of Milwaukee

Decision Date18 January 2007
Docket NumberNo. 06-1505.,06-1505.
Citation474 F.3d 437
PartiesSteven J. ALEXANDER, Keith Balash, Charles Berard, et al., Plaintiffs-Appellees, v. CITY OF MILWAUKEE, Arthur L. Jones, Police Chief, Woody Welch, Chairman of Milwaukee Board of Fire and Police, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for Plaintiffs-Appellees.

Miriam Horwitz (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellants.

Before POSNER, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Seventeen current and former members of the police force of the City of Milwaukee ("City") brought this action against the City, former Chief of Police Arthur Jones, the Milwaukee Board of Police and Fire Commissioners, and five of the Commissioners in their personal and official capacities. The officers, all white males, alleged that the City, the Chief and the Board had violated their statutory and constitutional rights by engaging in discriminatory promotion practices favoring women and minorities. The officers brought their claims under Title VII, 42 U.S.C. § 2000e et seq., as well as 42 U.S.C. §§ 1981 and 1983. Following a several-week bifurcated trial, a jury found the defendants liable on all counts; compensatory damages were awarded against all defendants and punitive damages were awarded against each of the individual defendants. Following a bench trial on economic damages, the district court also ordered back and front pay and costs. The defendants timely filed this appeal, challenging both liability and damages. For the reasons stated in the following opinion, we affirm in part and reverse in part the judgment of the district court.

A. Facts

The plaintiffs in this action are seventeen police officers who, during times relevant to this action, held the rank of lieutenant on the City's police force. From November 18, 1996 until November 18, 2003, defendant Arthur Jones was the Chief of the Milwaukee Police Department. As required by Wisconsin law, the City maintains a five-member Board of Fire and Police Commissioners ("Board"), a citizen oversight body charged with various duties, including the responsibility to make certain general policies and standards for the departments, the authority over appointments on the police force and in the fire department, and the duty to conduct disciplinary hearings following referrals by department chiefs. See Wis. Stat. § 62.50. By statute, commissioners serve staggered five-year terms. Id. at § 62.50(1). Defendants, Commissioners Woody Welch, Carla Cross, Eric M. Johnson, Leonard J. Sobczak and Ernesto A. Baca, all served for some portion of Chief Jones' tenure.

The events at issue in this action revolve around a series of forty-one promotions from the rank of lieutenant to captain that occurred between 1997 and 2003. In accordance with Wisconsin law, when a vacancy in the rank of captain became available, Chief Jones nominated a candidate to fill it. The governing statute required that he select candidates "already in the service [who have] proven their fitness for the promotion." Wis. Stat. §§ 62.50(7)(b), 62.50(9). The process for selecting nominees for promotion in the relevant period was ill-defined: The City had no written procedures, and Chief Jones testified that he could not recall his thought processes with respect to the nominations, that he did not post a position announcement when a vacancy became open in the captain ranks and that he did not keep any records regarding nominations, R.273 at 391-93. Instead, Chief Jones stated that he personally evaluated potential candidates to determine the candidate he thought would be "the most qualified to fill [the] position." R.273 at 409. In making this determination, Chief Jones said that he considered an individual's skills, abilities and knowledge and in some measure also considered seniority. R.272 at 205, 228; R.273 at 394. His conclusions were based on his "personal observations of the individual over some — in most instances a long period of time," R.272 at 228, and verbal recommendations "from various individuals," R.272 at 232. He denied that race or gender was a factor in his decision, R.273 at 460, although the jury apparently disbelieved this statement.1

Having selected his nominee through this fairly amorphous and private process, the Chief would then forward the candidate's name to the Board and would request that the Board approve the appointment to the rank of captain in accordance with Wisconsin law. Wis. Stat. § 62.50(2). Along with the nomination, the Chief would forward the candidate's "hard card," which contained information from his or her service history and a resume, often prepared for this purpose. The Commissioners testified that they reviewed the documentation sent by Chief Jones and interviewed the candidates before conducting a vote on their approval of the appointment. They each specifically testified that they did not consider race or gender when approving promotions. They did, however, evaluate Chief Jones on his ability to foster diversity; over the course of an apparently deteriorating relationship in which his marks in a variety of other categories plummeted, he was determined consistently to be "exceed[ing] expectations" in valuing and achieving diversity on the force.2 R.298, Exs.59-64.

During the relevant period, there were forty-one promotional opportunities to the rank of captain. Chief Jones submitted forty-one nominees, all of whom were approved, and in all but one case, upon review of the record and interview of the candidate, the approval was unanimous.3

The Board kept records concerning the racial and gender diversity of the police force in part because of court orders issued in response to discrimination suits dating back to the 1970s. R.298, Ex.40 at 1. In fact, a consent decree governing affirmative action in hiring, but not promotions, was still in place during the beginning of Chief Jones' tenure. See R.298, Exs.537, 538. In 1996, on the twentieth anniversary of the first court order, a report was prepared by Joan Dimow, a researcher on the staff of the Fire and Police Commission ("FPC")4 and Kenneth Munson, Executive Director of the FPC, as a consultation paper to the United States Commission on Civil Rights. In that report, the authors discussed the affirmative action programs in the Milwaukee police force and stated that they believed that increased diversity on the force advanced two complementary goals: creating a representative force and better preparing all officers for culturally-diverse interaction in the community they serve. R.298, Ex.40 at 1. That same report noted continuing goals for diversity in recruiting and hiring, but stated that there were "no affirmative action goals for promotion," and that, because a variety of factors controlled a candidate's success in receiving promotions, the expected improvements in diversity among management were slower to take root. Id. at 7-8. In 2001, Dimow updated the findings in the earlier report, and in a portion examining diversity in command-staff rankings, noted that white men were under-represented at the rank of captain and higher, at just over forty-four percent, while their proportion in the entire department was nearly fifty-three percent, R.298, Ex.5 at 4; African-Americans were identified as over-represented.5 These reports apparently were made available to the Commissioners, although they were not discussed at a Board meeting. Only Commissioner Welch recalls any conversation regarding the reports. He testified that he and Dimow discussed the statistics from the later report and that he asked that the report be forwarded to Chief Jones. R.275 at 759.

Of the forty-one persons promoted to the rank of captain during the relevant period, the record shows that at least some women and minorities were promoted more quickly than white males, with four promoted during their one-year probationary periods in the rank of lieutenant. R.298 Ex.58. Of the twenty women and minorities promoted during Chief Jones' tenure, seventeen had spent less than five years in the lieutenant rank, while the same was true for only four of the twenty-one white males promoted during the same period. Id.

The seventeen plaintiffs in this action were, during the period of the forty-one promotions, qualified lieutenants eligible for promotion to the rank of captain. R.273 at 347. They were not promoted despite, in many cases, having seniority to a female or minority lieutenant selected for promotion.

B. District Court Proceedings

The plaintiffs brought this action in the Eastern District of Wisconsin against the City, the Chief, the Board and the Commissioners, alleging violations of 42 U.S.C. §§ 1981 and 1983, and Title VII. The plaintiffs' theory was that Chief Jones had intentionally discriminated against white male members of the lieutenant ranks in promotions to captain and that the Commissioners knew about the discrimination and nevertheless approved every candidate for promotion. In special verdicts, the jury found that the City and Chief Jones had discriminated intentionally in favor of women and minority candidates in the selection of officers for promotion to captain and that the Commissioners had "personally participate[d]" in the discrimination. R.149 at 4-5.

In their initial answer, the defendants had raised a defense of qualified immunity.6 At trial, they introduced some evidence that there was a compelling interest in diversity in a police force, but they did not further request a ruling on their entitlement to qualified immunity until filing a motion for judgment as a matter of law and a renewed motion for judgment as a matter of law. R.140, R.224. Both these post-trial motions were denied by the district court.

Following a verdict in favor of the plaintiffs on liability, the...

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