Black Law Enforcement Officers Ass'n v. City of Akron
| Decision Date | 03 September 1987 |
| Docket Number | 86-3242,No. 7,Nos. 86-3087,7,s. 86-3087 |
| Citation | 824 F.2d 475 |
| Parties | 44 Fair Empl.Prac.Cas. 1477, 44 Empl. Prac. Dec. P 37,411, 44 Empl. Prac. Dec. P 37,412 BLACK LAW ENFORCEMENT OFFICERS ASSOCIATION; Ed Irvine; Harold Craig, Plaintiffs-Appellants, v. The CITY OF AKRON; the Fraternal Order of Police, Lodge; Joseph P. Wheeler; Sidney Foster; Virgil Collins; Phillip Barnes, Chief of Police, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Edward L. Gilbert, argued, Parms, Purnell, Gilbert & Stidham, Akron, Ohio, for plaintiffs-appellants.
Patricia C. Ambrose, argued, Asst. Director of Law, and James L. Burdon, Akron, Ohio, for defendants-appellees.
Before JONES and GUY, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Plaintiffs in this employment discrimination action appeal from the district court's order granting them preliminary injunctive relief. Plaintiffs also appeal from the district court's ruling on a motion in limine involving a statute of limitations question and a related evidentiary issue. For the reasons set forth below, we affirm in part and reverse in part.
This appeal involves two complaints that were filed by overlapping groups of black police officers of the City of Akron challenging the promotion policy of the City's police department. On September 21, 1984, the Black Law Enforcement Officers Association ("BLEOA"); Ed Irvine, the sole black lieutenant on the police force; and Harold Craig, the sole black sergeant on the force, filed a class action suit against the defendants: the City of Akron; the Fraternal Order of Police, Lodge No. 7; Joseph P. Wheeler, President of the Civil Service Commission; Phillip Barnes, Akron's Chief of Police; and Sidney Foster and Virgil Collins, members of the Civil Service Commission. Plaintiffs alleged that the police department's promotional policies racially discriminated against blacks in violation of 42 U.S.C. Secs. 1981 and 1983 (1982), and the equal protection and due process clauses of the Fourteenth Amendment. 1 Plaintiffs sought declaratory and injunctive relief, as well as compensatory and punitive damages.
In May 1985, plaintiffs filed a motion seeking a preliminary injunction preventing the administration of a proposed promotional test for sergeant that was scheduled to be given in June 1985. The district court allowed the test to be given, but stayed any promotions pending a hearing on the merits.
On September 23, 1985, plaintiffs William W. Ellison, Donnie W. Whitworth, Dennis Johnson Jr., Leonard Mitchell Jr., O'Dell Daniels, and Douglas Prade, individual black police officers in the Akron Police Department who had sat for the June 1985 promotional exam, also filed suit against the same defendants. These plaintiffs alleged the same claims set forth by the plaintiffs in the BLEOA case, as well as a claim under Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq. (1982). These plaintiffs sought the same relief as the BLEOA plaintiffs. The two cases were consolidated by the district court on October 4, 1985.
The contested promotional test was administered as scheduled on June 3, 1985. One hundred and sixty Akron patrolmen sat for the exam, including eighteen blacks. The exam consisted of five weighted components. The components and their respective weights are as follows:
Component Maximum Weight
1)Job knowledge test 42%
2)Test battery 14%
3)Performance appraisal 14%
4)Seniority 10%
5)Service rating 20%
The job knowledge component involved a written examination that required candidates to answer questions regarding the necessary knowledge, skill, and ability needed by sergeants to perform specific tasks and duties. The test battery involved a written examination designed to measure the following factors: practical reasoning ability, memory, leadership, cognitive structure, and lack of impulsiveness--all personality traits that mark an individual's ability to make careful decisions. The performance appraisal aspect of the test involved the evaluation of individual candidates by their superiors, who were required to rate the performance and abilities of the individual patrolmen under their supervision. The service rating aspect of the examination involved rating reports completed twice per year for each officer by supervisory personnel. The report is designed to measure an officer's quality and quantity of work, attendance, work habits, relationship with others, and supervisory skills. The ratings given are outstanding, very good, satisfactory, improvement needed, or unsatisfactory. Service ratings have been used in promotional examinations by the City for approximately fifty years. The final component of the examination, seniority, measured credit given to patrolmen based upon length of continuous service with the City up to a maximum of fourteen years. A candidate received one point for each of his first four years of service and six-tenths of a point for each of the next ten years of service.
The motion for preliminary injunction was heard over eight days from October 6, 1985, to December 17, 1985. The issue at the hearing was whether the City should be enjoined from promoting officers based on the results of the June 3, 1985 exam. The court heard extensive expert testimony from both sides as to the development of the promotional procedures used by the City and their potential adverse impact. Individual plaintiffs testified regarding the damage they would sustain if promotions were made based upon the June 3d exam. Chief Barnes also testified as to the City's immediate need for sergeants and the adverse impact that preventing promotions would have on the City.
During the course of the proceedings the court ordered two separate rankings of candidates based on the June 3d exam. Ranking # 1 was based on the scores of all five components of the examination. Ranking # 2 excluded the scores from the performance appraisal component of the examination.
The court issued a memorandum opinion on January 23, 1986, in which it reviewed each of the components of the examination and concluded that plaintiffs had failed to establish that they were likely to prove that the test battery, job knowledge test, service rating, or seniority components of the promotional exam were discriminatory. The court concluded, however, that plaintiffs had shown that they could likely prove that the performance appraisal component of the test is discriminatory. The court noted that:
[T]he plaintiffs have made a showing of disparate impact. Additionally, plaintiffs and intervenors have jointly established that the performance appraisal review was so arbitrary, subjective, capricious, and subject to potential and actual manipulation as to constitute a violation of plaintiffs' and intervenors' rights to equal protection and due process of the law. The Court finds that together, this constitutes a showing of discriminatory intent on the basis of race sufficient to meet the requisite standard under Secs. 1981, 1983 and the constitutional claims.
App. 77 (footnote omitted). The court next addressed the validity of the two court-ordered rankings based on the June 3d exam and found that ranking # 1, which included scores from the performance appraisal component, was suspect. The court also found that plaintiffs would suffer irreparable injury if permanent promotions were made from a list based upon a scoring of the promotional exam involving all five components. The court reasoned that if the plaintiffs had a legitimate right to promotions, they would undoubtedly suffer irreparable harm if white officers were permanently promoted to positions to which black officers are ultimately entitled. The City was therefore enjoined from making promotions based on this ranking.
The court found, however, that ranking # 2, which excluded the performance appraisal component, was not discriminatory. The court found that plaintiffs had not been able to establish disparate impact with regard to ranking # 2 through the use of statistics and observed that the number of minorities who took the exam was so small that any assessment of adverse impact was speculative. The court also noted that plaintiffs had not established adverse impact through the EEOC's "four fifths" or "80% rule-of-thumb" rule. 2 The court observed that plaintiffs' expert witness had testified that App. 101. When the performance appraisal component was maintained, 50 percent of the blacks and 75 percent of the whites passed.
Having found that plaintiffs would suffer irreparable injury if permanent promotions were made based on the June 3d exam, the court next addressed the questions of whether substantial harm would be caused to the City by issuance of the preliminary injunction and whether the public interest would be served by issuance of the injunction. The court first found that a large number of sergeants' vacancies existed in the ranks of the police department. There are approximately sixty-five sergeants' positions in the Akron police department. At the time of the hearing, there were fourteen to fifteen openings for the position of sergeant. Relying in large part upon the testimony of the chief of police that the presence of the requisite number of sergeants was crucial to the safety of citizens, the court found that the currently existing shortage of sergeants would constitute a substantial degree of harm to the City if a preliminary injunction blocking promotions were issued. The court therefore concluded that the interests of the City would...
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