Bratton v. City of Detroit

• Decision Date: 29 March 1983
• Docket Number: No. 80-1837,80-1837
• Parties: 31 Fair Empl.Prac.Cas. 465, 31 Empl. Prac. Dec. P 33,497 Hanson BRATTON, et al., Plaintiffs-Appellants, v. CITY OF DETROIT, et al., Defendants-Appellees, and Guardians of Michigan, et al., Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 878

704 F.2d 878

31 Fair Empl.Prac.Cas. 465,

31 Empl. Prac. Dec. P 33,497

Hanson BRATTON, et al., Plaintiffs-Appellants, v. CITY OF DETROIT, et al., Defendants-Appellees, and Guardians of Michigan, et al., Intervening Defendants-Appellees.

No. 80-1837.

United States Court of Appeals, Sixth Circuit.

Argued June 15, 1982.

Decided March 29, 1983.

K. Preston Oade, Jr. (argued), Ramsdell, Oade & Feldman, Southfield, Mich., for plaintiffs-appellants.

O. Peter Sherwood (argued), New York City, James Andary, Detroit, Mich., Warren J. Bennia, New York City, for defendants-appellees.

Before MERRITT and JONES, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

This appeal arises out of the controversy surrounding the adoption and administration of a voluntary affirmative action program for the Detroit Police Department. The plaintiffs-appellants herein are a class of white police sergeants who claim to have been adversely affected by the operation of the program as it relates to the guidelines for the promotion of officers from the rank of sergeant to that of lieutenant. ¹ The appellants assert that the sergeant-to-lieutenant element of the plan violates their rights under Title VII (42 U.S.C. Sec. 2000, et seq.), 42 U.S.C. Sec. 1983, and the Fourteenth Amendment to the United States Constitution.

In a series of judgments, culminating with the entry of a final order on November 17, 1980, ² the district court thoroughly addressed each of the appellants' claims. That court concluded that (1) the adoption of an affirmative action plan was a legitimate response to the reality of prior discriminatory practices, ³ (2) the operation and proposed duration of this segment of the plan was reasonable and, thus, permissible under Title VII and the Fourteenth Amendment, ⁴ (3) the plan, though voluntary, should be protected from collateral attack by incorporation into a judicial decree, ⁵ (4) the plaintiffs were not entitled to a jury trial on disputed issues of fact concerning the validity of the plan, ⁶ and (5) the defendants were entitled to summary judgment with regard to the plaintiffs' claims for monetary judgments other than back pay. ⁷ The appellants contest the propriety of each of these rulings in turn. ⁸ Recognizing the importance and the difficulty of the issues raised by this appeal, this Court has given careful consideration to each of the appellants' contentions.

We now hold that the affirmative action plan adopted for the Detroit Police Department is a valid and permissible remedy for the clearly identifiable past discriminatory practices in that department. ⁹ For the reasons detailed below, we affirm all judgments rendered by the district court in this matter.

I

In 1974, the Detroit Police Department voluntarily adopted a set of affirmative action plans in an effort to eliminate discriminatory hiring practices and to increase the number of minority applicants being promoted from existing promotion lists. The three basic job levels in the department are patrolman, sergeant and lieutenant. An end goal of a 50/50 staffing ratio was adopted for all levels. ¹⁰ The portion of the plan pertinent to the instant appeal is that affecting the guidelines for promotions from sergeant to lieutenant.

Prior to 1974, all candidates for promotion were ranked on a single list. Each was given a numerical rating based on various factors including, inter alia, their individual score on a written exam. ¹¹ The promotions would then be made by beginning with the highest-ranking candidate and working down the list until all available positions were filled.

The affirmative action plan does not alter the basic criteria for determining promotion eligibility, nor does it alter the minimum requirements necessary for consideration for the rank of lieutenant. ¹² The plan mandates that two separate lists for promotion be compiled, one for black and the other for white officers. The rankings on those lists are then made in accordance with the same numerical rating system previously employed. The promotions are made alternately from each list so that white and black officers are promoted in equal numbers. This 50/50 plan is to remain in effect until fifty percent of the lieutenant corps is black, an event estimated to occur in 1990.

The appellants are a group of white officers in the department whose promotions were allegedly delayed or denied because of the affirmative action plan. Their complaint essentially is that had all candidates been ranked on a single roster, their rankings would have been higher than some or all of those blacks promoted under the plan. It is this result which the appellants contend is the product of illegal discrimination.

The appellants do not argue in this appeal, nor could it be seriously contended given the numerous judicial determinations on the issue, that affirmative action plans are per se illegal. ¹³ See, Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Williams v. City of New Orleans, 694 F.2d 987 (5th Cir.1982); Boston Chapter, NAACP v. Beecher, 679 F.2d 965 (1st Cir.1982); Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir.1982). See also United States v. City of Miami, Florida, 614 F.2d 1322 (5th Cir.1980) and cases cited therein. This is true whether the challenge has been raised under Title VII, see United Steelworkers of America, AFL-CIO-CLC v. Weber, et al., 443 U.S. 193, 209, 99 S.Ct. 2721, 2729, 61 L.Ed.2d 480 (1979); Williams v. City of New Orleans, supra; La Riviere v. EEOC & California Highway Patrol, 682 F.2d 1275 (9th Cir.1982), the Fourteenth Amendment, see Valentine v. Smith, 654 F.2d 503 (8th Cir.1981), or both, see Boston Chapter, NAACP v. Beecher, supra. In fact, this Court has previously found that, under the appropriate circumstances, affirmative action plans can withstand either challenge. ¹⁴ Detroit Police Officers Association v. Young, 608 F.2d 671 (6th Cir.1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 951 (1981). The appellants do contend, however, that this particular affirmative action plan overstepped the bounds of statutory and constitutional validity. ¹⁵

In assessing the merits of these claims, we will first analyze the guidelines under which we are to judge the propriety of any given affirmative action program. Reviewing the particular facts of the case before us in light of those principles will then enable us to determine whether, in fact, the plaintiffs' rights have been violated by the operation of this particular plan.

II

A. Title VII

In United Steelworkers of America v. Weber, supra, the Supreme Court made clear that Title VII does not prohibit all remedial, race-conscious affirmative action plans. 443 U.S. at 209, 99 S.Ct. at 2729. In Weber, the Supreme Court examined a voluntary affirmative action program adopted by a private employer which guaranteed fifty percent of the openings in an in-plant craft-training program for black employees. The Court considered the terms and policies of Title VII and concluded that, although private employers were not required to implement affirmative remedial programs to offset prior racial imbalances, the Act does not prohibit voluntary race-conscious actions which are consistent with the antidiscrimination policy of the statute. See Detroit Police Officers Association v. Young, 608 F.2d at 689.

The Court then proceeded to examine whether the particular affirmative action program before it fell within the bounds of what is deemed permissible under the ambit of Title VII. The Court refused to draw any bright line for defining the outer limits of a permissible affirmative action plan. It did, however, single out some particular features of the plan before it which compelled the conclusion that that program was "on the permissible side of the line." United Steelworkers of America v. Weber, 443 U.S. at 208, 99 S.Ct. at 2730. The plan was aimed at breaking down prior patterns of segregation and racial hierarchy, it was deemed to not "unnecessarily trammel" the interests of the white employees and was merely a temporary measure, to end when the manifested racial imbalance no longer existed.

There is no doubt that, on its facts, Weber dealt with whether and to what extent a private employer could adopt an affirmative action plan and remain consistent with the mandates of Title VII. This does not mean, however, that the analysis in Weber is inapposite to a case in which a public employer has been charged with a violation of Title VII for the implementation of similar programs. On the contrary, Title VII was specifically amended to include public employers within its purview so that states and their official agencies are explicitly subject to Title VII mandates. ¹⁶ In the traditional context of minority complaints under Title VII, the analysis employed for determining whether a statutory violation has occurred has been applied consistently, whether the employer is a public or private entity. ¹⁷ There is no reason to alter the reach of Title VII in the present context. ¹⁸

Where a public employer adopts a voluntary affirmative action measure which satisfies the bounds of permissibility gleaned from Weber, that employer will be insulated from Title VII liability. Williams v. City of New Orleans, supra; La Riviere v. EEOC, 682 F.2d at 1279; Boston Chapter, NAACP v. Beecher, 679 F.2d at 965. This conclusion lay behind a significant portion of our analysis and holding in Young and we do not now deviate from that stance. Cf. Van Aken v. Young, 541 F.Supp. 448 (E.D.Mich.1982).

B. Fourteenth Amendment

To hold that a public employer is not liable under Title VII where its affirmative action program satisfies Weber does not necessarily end the inquiry where, as here, that employer has also been charged with a violation of the Fourteenth Amendment....