Baker v. City of Detroit

• Decision Date: 25 September 1979
• Docket Number: Civ. No. 5-71937,5-72264.
• Citation: 483 F. Supp. 919
• Parties: Kenneth BAKER, Arthur Bartniczak, Hanson Bratton, Patrick Jordan, Frank Krzesowik, Elbert McVay and Robert Scally, Plaintiffs in Civ. No. 5-71937, and Hanson Bratton, Gale Bogenn, William Shell, Patrick Jordan, Charles Mahoney, Individually and on behalf of all others similarly situated and the Detroit Police Lieutenants & Sergeants Association, Plaintiffs in Civ. No. 5-72264, v. CITY OF DETROIT, a Municipal Corporation, Philip G. Tannian, Chief of Police, Detroit Police Department; Coleman A. Young, Mayor, City of Detroit; and the Board of Police Commissioners, City of Detroit, Defendants, and Guardians of Michigan, David L. Simmons, Arnold D. Payne, James E. Crawford, Clinton Donaldson, Willie Johnson, Kenneth M. Johnson and Alfred Brooks, Intervening Defendants.
• Court: U.S. District Court — Western District of Michigan

483 F. Supp. 919

Kenneth BAKER, Arthur Bartniczak, Hanson Bratton, Patrick Jordan, Frank Krzesowik, Elbert McVay and Robert Scally, Plaintiffs in Civ. No. 5-71937 and Hanson Bratton, Gale Bogenn, William Shell, Patrick Jordan, Charles Mahoney, Individually and on behalf of all others similarly situated and the Detroit Police Lieutenants & Sergeants Association, Plaintiffs in Civ. No. 5-72264, v. CITY OF DETROIT, a Municipal Corporation, Philip G. Tannian, Chief of Police, Detroit Police Department; Coleman A. Young, Mayor, City of Detroit; and the Board of Police Commissioners, City of Detroit, Defendants and Guardians of Michigan, David L. Simmons, Arnold D. Payne, James E. Crawford, Clinton Donaldson, Willie Johnson, Kenneth M. Johnson and Alfred Brooks, Intervening Defendants.

Civ. Nos. 5-71937, 5-72264.

United States District Court, E. D. Michigan, S. D.

September 25, 1979.

James P. Hoffa, Murray J. Chodak, Hoffa, Chodak & Robiner, Detroit, Mich., for plaintiffs in No. 5-71937.

K. Preston Oade, Jr., Bernard A. Friedman, Robert S. Harrison, Marc G. Whitefield, Lippit, Harrison, Perlove, Friedman & Zack, Southfield, Mich., for plaintiffs in No. 5-72264.

Beth J. Lief, Jack Greenberg, James M. Nabrit, III, O. Peter Sherwood, Napoleon B. Williams, Lowell Johnston, New York City, Barry L. Goldstein, Washington, D.C., James R. Andary, Sp. Asst. Corp. Counsel for the City of Detroit, George Matish, Anna Diggs-Taylor, Nancy McCaughan, James Zeman, Denise Page Hood, Law Dept., City of Detroit, Detroit, Mich., for defendants.

Warren J. Bennia, New York City, for intervening defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

KEITH, Circuit Judge, Sitting by Designation.

A class of white police officers and the Detroit Police Lieutenants & Sergeants Association have brought this action, alleging that they were illegally discriminated against when the City of Detroit adopted an affirmative action program whereby equal numbers of white and black police sergeants were promoted to the rank of lieutenant. In an order and opinion dated July 31, 1978, this Court denied plaintiffs' demand for a jury trial, and requested that the parties brief the issue of whether plaintiffs' claims for actual and punitive damages could withstand a motion for partial summary judgment in light of a record indicating good faith conduct by the city officials who promulgated the affirmative action program in question.

In response to this Court's invitation, on August 19, 1978, defendants moved for partial summary judgment dismissing plaintiffs' claims as to monetary damages other than back pay. Defendants' motion was argued before the Court on September 5, 1978.

I.

Before reaching the merits of the summary judgment motion, the Court must discuss a threshold procedural objection raised by the plaintiffs. Plaintiffs contend that good faith qualified immunity is an affirmative defense which must be properly pleaded or it is waived. They further claim that a review of the pleadings establishes that defendants never asserted the affirmative defense of qualified immunity. They therefore conclude that defendants must be deemed to have waived the defense. Alternatively, plaintiffs claim that they have been prejudiced because this issue has not been raised previously and assert a need to develop additional discovery.

This Court will assume, without deciding, that good faith immunity is an affirmative defense which must be pleaded and proved by the defendant. Compare Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (district court's grant of a threshold summary judgment motion on good faith immunity grounds upheld) with Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 61-62 (3rd Cir., cert. denied 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976)). ("Since good faith was a matter of defense it could not be determined on Rule 12(b)(6) motion.")

The requirement that affirmative defenses be specifically pleaded is based on notions of fair play. A party should not have to deal with an extraneous issue in a lawsuit unless it is specifically brought to his attention. At the same time, hypertechnicality in pleading requirements should be avoided. Thus, liberal pleading rules are equally applicable to the pleading of affirmative defenses. See 2A Moore's Federal Practice Par. 8.27(3). More important, what matters is not whether the magic words "affirmative defense" appears in pleadings, but whether the Court and the parties were aware of the issues involved. See Backar v. Western States Producing Company, 547 F.2d 876, 881 (5th Cir. 1977).

It is clear to this Court that the issue of the good faith immunity of the officials being sued in this case has been at all times properly before the Court. Initially, it is clear that the defendants' good faith is inherent to their affirmative defenses that the promotions in question were made in compliance with the United States Constitution, Civil Rights Acts, and the Charter of the City of Detroit in order to counteract a hiring and promotional system which in the past had discriminated against blacks. These defenses clearly set forth legal grounds for a claim of governmental immunity. That is, that the actions taken by the defendants were consistent with the law and indeed were meant to comply with the law and were in no way malicious or based on bad faith.

If there were any doubt as to this, plaintiffs themselves have removed it. In February of 1977, the Bratton plaintiffs amended their complaint and added specific allegations of willful, knowing, and intentional discrimination. It was via this amended complaint that the Bratton plaintiffs for the first time, raised the issue of actual and punitive damages. Indeed, the basis raised for punitive damages was that defendant had initiated the affirmative action program with full knowledge that it was illegal. See Bratton complaint, paragraph 5. In response, defendants specifically denied each and every allegation made. In light of the above, the Court has no trouble concluding that the instant motion for summary judgment is properly before it.

II.

The good faith immunity test which is applicable here was recently restated by the Supreme Court in Procunier v. Navarette, 434 U.S. 555, 562, 566, 98 S.Ct. 855, 860, 862, 55 L.Ed.2d 24 (1978):

"If the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm"; or "where the official has acted with `malicious intention' to deprive the plaintiff of a constitutional right or to cause him `other injury.'"

There is no doubt that defendants are entitled to immunity under the first prong of the test articulated above. This case concerns a voluntary race-conscious promotion program instituted by the Detroit Board of Police Commissioners. Contrary to plaintiffs' continued assertions, it is not clear now nor was it clear in 1974 and 1975 when the Board first acted, that a voluntary affirmative action program relating to promotions of public employees is illegal.

Numerous cases have repeatedly held that numerical race-conscious remedies may be imposed to eradicate the effects of past discriminatory employment practices. See Davis v. County of Los Angeles, 566 F.2d 1334, 1342-43 (9th Cir. 1977), vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) and cases cited. Plaintiffs cannot deny that they would have no cause to complain if this affirmative action program had been imposed by a court pursuant to a lawsuit brought by the EEOC or by black policemen. It is the voluntary, extra-judicial nature of this program which subjects it to question in this forum. Voluntary affirmative action was struck down in Weber v. Kaiser Aluminum Company, 563 F.2d 216 (5th Cir. 1977), Reeves v. Eaves, 411 F.Supp. 531 (M.D.Ga.1976) and Chmill v. City of Pittsburgh, 31 Pa.Cmwlth. 98, 375 A.2d 841 (1977). However, it was upheld in Germann v. Kipp, 429 F.Supp. 1323 (W.D.Mo.1976), vacated as moot, 572 F.2d 1258 (8th Cir. 1978); Lindsay v. City of Seattle, 86 Wash.2d 698, 548 P.2d 320 (1976), cert. denied 429 U.S. 886, 97 S.Ct. 237, 50 L.Ed.2d 167 (1976); Hutchinson Commission v. Midland Credit Management, Inc., 213 Kan. 399, 517 P.2d 158 (1973). The Supreme Court's recent decision in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), five years after the City first promulgated the affirmative action program under attack here, makes it clear that under some circumstances, voluntary race-conscious affirmative action programs are allowable. Even if the city's program under attack in this litigation is determined to be unreasonable, it cannot be said that the City defendants ever acted contrary to known law.

Weber dealt with a private employer's affirmative action program and found that Title VII's prohibition of racial preference did not always bar a voluntary preference in favor of blacks. A Title VII claim is present in this case as well, but additional statutory and constitutional issues are present because the City is a public entity subject to the command of Title VI of the Civil Rights Act and the Fourteenth Amendment to the Constitution. The limitations on voluntary race-conscious promotional efforts under Title VI and the Fourteenth Amendment are unsettled. One need look no further than the close division of the Justices in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) to see that this is true.

This Court is aware that another district judge of this bench has recently ruled that the city's voluntary affirmative action program was per se illegal as a matter of constitutional and statutory law. Detroit Police Officers Association v. Young, 446 F.Supp. 979 ...