Association Against Discrimination in Employment Inc. v. City of Bridgeport, 1092

• Citation: 710 F.2d 69
• Decision Date: 13 June 1983
• Docket Number: No. 1092,D,1092
• Parties: 32 Fair Empl.Prac.Cas. 20, 32 Empl. Prac. Dec. P 33,686 ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, INC., et al., Plaintiffs-Appellees, v. CITY OF BRIDGEPORT, et al., Defendants-Appellees, and Bridgeport Firefighters for Merit Employment, Inc., et al., Intervenors-Defendants-Appellants. ocket 83-7042.
• Court: U.S. Court of Appeals — Second Circuit

Page 69

710 F.2d 69

32 Fair Empl.Prac.Cas. 20, 32 Empl. Prac.

Dec. P 33,686

ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, INC., et

al., Plaintiffs-Appellees, v. CITY OF BRIDGEPORT, et al., Defendants-Appellees, and Bridgeport Firefighters for Merit Employment, Inc., et al.,

Intervenors-Defendants-Appellants.

No. 1092, Docket 83-7042.

United States Court of Appeals, Second Circuit.

Argued March 31, 1983.

Decided June 13, 1983.

David N. Rosen, New Haven, Conn. (Michael P. Koskoff, New Haven, Conn., on the brief), for plaintiffs-appellees.

Thomas K. Jackson, Bridgeport, Conn., for defendants-appellees.

William B. Barnes, Milford, Conn. (J. Daniel Sagarin, Hurwitz & Sagarin, P.C., Milford, Conn., on the brief), for intervenors-defendants-appellants.

Before KEARSE, PIERCE and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Intervening defendants Bridgeport Firefighters for Merit Employment, Inc., et al. ("BFME"), appeal from an order of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, then Judge, now Chief Judge, modifying an injunction previously entered by the court with the approval of this Court as a remedy for violations by defendants City of Bridgeport, et al. (the "City"), of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. Secs. 2000e to 2000e-17 (1976 & Supp.V 1981), and the antidiscrimination provision of the State and Local Fiscal Assistance Act ("Revenue Sharing Act"), 31 U.S.C. Sec. 1242(a) (1976), in the hiring of firefighters. BFME contends that the district court's modification violates this Court's rulings in the two previous appeals in this matter. We disagree and affirm the order of the district court.

BACKGROUND

The history of this action is described in detail in two prior opinions of this Court, see Association Against Discrimination in Employment v. City of Bridgeport, 594 F.2d 306 (2d Cir.1979) ("ADE I "); Association Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256 (2d Cir.1981) ("ADE II "), aff'g in part 479 F.Supp. 101 (D.Conn.1979), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982), familiarity with which is assumed. The principal focus of the present appeal is the mandate of this Court in ADE II, which largely affirmed the district court's order, whose principal thrust was that, in order to remedy the City's violations of antidiscrimination laws, the City would be required to offer firefighter positions and to pay backpay to minority victims of the City's past discrimination.

In ADE II we upheld findings of the district court that the City had "engaged in a continuous policy of discrimination" against black and hispanic candidates in the hiring of firefighters, 647 F.2d at 274, as evidenced by many discriminatory acts, "includ[ing] the giving of the 1975 exam that was not job related and had discriminatory impact, and the individual acts of discrimination against several minority candidates who sought to take that exam in 1975," id. at 275. We also upheld findings

that, in addition to administering discriminatory exams, the City had purposely failed to recruit minority applicants, had actively deterred interested minority applicants, and had discriminated against several individual minority candidates, and that the City's failure to recruit and Id. at 284 (footnote omitted).

its discriminatory treatment of minority individuals were not in good faith.

In light of the district court's factual findings, we also upheld the remedial provisions fashioned by the court, ¹ based upon its considered judgment "that merely ordering nondiscriminatory hiring in the future, even coupled with the requirement that the City actively recruit minority candidates, would be inadequate either to remedy past discrimination or to 'assure prospective minority candidates that applying is no longer futile.' " 479 F.Supp. at 113 (citation omitted). The remedial order, as set out in id. at 115-19 and in ADE II, 647 F.2d at 267-69, and as quantitatively modified in ADE II, see note 1 supra, provided in pertinent part (1) that the City must prepare a list of 73 victims of the City's discrimination to be offered positions as firefighters, consisting principally of

(a) The black and hispanic persons who filed applications for either the 1971 or 1975 test, who have not been offered but still seek employment with the Fire Department, and who pass both the agility test and medical examination to be administered by the City,

479 F.Supp. at 115-16; 647 F.2d at 267, and (2) that the City must prepare a list of up to 73 discriminatees to receive backpay. Most pertinently for purposes of the present appeal, preference for inclusion in the backpay list was given to persons on the list of discriminatees to be offered firefighter positions.

Events following our decision in ADE II have proceeded largely in accordance with the remedial plan structured by the district court, with one major exception. At some point it was discovered that some discriminatees who would be eligible to be placed on the list of 73 persons to be offered firefighter positions, if they still sought such positions, would represent that they were still interested when in fact they were not, simply in order to receive the backpay to be awarded offerees. ² The result would be that a number of persons would have themselves placed on the offeree list and go through training programs with no genuine intention of becoming full-fledged firefighters. The City would then have expended substantial sums in training persons who would perform no firefighting services; and the number of minority firefighters in the Bridgeport Fire Department would be lower than it would be if only still-interested discriminatees were placed on the list of those to be offered positions.

In order to avert this potentially unproductive and wasteful turn of events, plaintiffs and the City agreed to request the district court to modify the remedial scheme in one respect. In order to eliminate the incentive for those not still desiring to be firefighters to misrepresent their intentions, it was agreed that the backpay list should simply be divorced from the offeree list. Thus, up to 73 persons ³ who could prove they were victims of the City's discrimination could be awarded backpay without the need to commit themselves to becoming firefighters; 73 discriminatees still interested in becoming firefighters would be placed on the offeree list, but not all of them would receive backpay since only a maximum of 73 backpay awards are to be made.

In an order dated December 13, 1982 ("December 1982 Order"), the district court The City of Bridgeport, the deterred minorities, and the minority applicants have reached an agreement to eliminate the incentive for any minority applicant to misrepresent a present interest in a firefighter position for purposes of securing a backpay award. The City is obligated to pay its backpay liability to all persons who are placed on the backpay list. The number of persons for which the City has a potential liability in the form of backpay is , and this number is neither increased nor decreased by the agreement with the plaintiffs. The City will merely consider a backpay list of persons, some of whom would not have been entitled to be on the list, in exchange for an offeree list with bona fide candidates, saving city training resources and helping department morale. On the other hand, the deterred minorities want to be considered for places on the offeree list, which can only occur if places on the offeree list are not taken by persons not properly there, that is minority applicants without a present interest in and qualifications for a firefighter position. In exchange for these places on the offeree list being available to deterred minorities, these deterred minorities who actually are placed on the offeree list relinquish their right to be placed on the backpay list, that occurrence having been automatic for them under the court order. The dozen or so minority applicants who would be tempted to represent that they are presently interested in the position in order to be placed on the offeree list and therefore automatically on the backpay list, will honestly state that they are no longer interested in the position in exchange for the City agreeing to place them on the backpay list and for the deterred minorities agreeing to give up their rights to be on the backpay list.

approved this proposal, stating in part as follows:

This court has no difficulty with the substance of the solution arrived at by the plaintiffs and the City of Bridgeport. Each of the parties is bargaining to achieve a desired result as a mature, intelligent person. In essence, the plaintiffs and the City have agreed to alter the composition of the backpay list to ensure that the offeree list has only qualified minority persons genuinely interested in pursuing a firefighter career in the Bridgeport Fire Department. As noted above, this court and the Court of Appeals clearly intended that the offeree list include only minority persons of this character.

December 1982 Order at 5-6.

BFME is a nonprofit organization representing non-minority firefighters within the Bridgeport Fire Department. It had been permitted to intervene in the action in 1976 to seek relief from any injury that might be done to nonminority firefighters by the City as a result of any modification of the City's hiring or promotional practices. ADE II, 647 F.2d at 261. BFME opposed the motion to modify the injunction principally on the grounds that the modification would increase the number of minority candidates hired by the City and would constitute a quota. These objections were overruled by the district court, which observed that

[a]s the intervening defendants are neither paying nor receiving backpay under the court order, they have no complaint as to who is or is not awarded backpay. That this altered backpay list...