Carter v. Gallagher

• Decision Date: 07 January 1972
• Docket Number: No. 71-1181.,71-1181.
• Citation: 452 F.2d 315
• Parties: Gerald CARTER et al., Plaintiffs-Appellees, and Minneapolis Commission on Human Relations, Plaintiff-Intervenor-Appellee, v. Hugh GALLAGHER et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.2d 315 (1971)

Gerald CARTER et al., Plaintiffs-Appellees, and Minneapolis Commission on Human Relations, Plaintiff-Intervenor-Appellee, v. Hugh GALLAGHER et al., Defendants-Appellants.

No. 71-1181.

United States Court of Appeals, Eighth Circuit.

September 9, 1971.

On Rehearing January 7, 1972.

COPYRIGHT MATERIAL OMITTED

Arvid M. Falk, Asst. City Atty., Keith M. Stidd, City Atty., Minneapolis, Minn., for defendants-appellants.

Luther A. Granquist, Marino, Becker & Granquist, Bernard Becker, Legal Aid Society, Inc., Minneapolis, Minn., for plaintiffs-appellees Gerald Carter et al.; Kirk A. Gustafson, Minneapolis, Minn., Legal Aid Society of Minneapolis, on the brief.

Charles Quaintance, Jr., Hyman Edelman, Minneapolis, Minn., for plaintiff-appellee Minneapolis Commission On Human Relations.

O. C. Adamson, II, Minneapolis, Minn., amici curiae Fire Fighters Association of Minneapolis, Local 82, Associated Fire Fighters of Minnesota, and International Assn. of Fire Fighters.

Before MATTHES, Chief Judge, VAN OOSTERHOUT, Circuit Judge and EISELE, District Judge.

On Rehearing En Banc January 7, 1972.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by defendants from decree enjoining them from holding examinations and setting standards for the purpose of determining qualifications of applicants for positions on the Minneapolis Fire Department until various racially discriminatory practices are corrected as directed in the trial court's decree and providing for absolute minority preference in employment of twenty minority persons.

This action for injunctive and declaratory relief was brought by five Blacks on behalf of themselves and all persons similarly situated. The classes represented by plaintiffs are:

(a) All those Black, Indian and other minority persons presently applying for employment with the Minneapolis Fire Department.

(b) All those Black, Indian and other minority persons in the City of Minneapolis who are not applicants for employment with the Minneapolis Fire Department either because their applications were not approved or because they believed that equal employment opportunity is denied to Black, Indian and other minority applicants for such employment.

For convenience the plaintiffs and the classes they represent will usually be referred to as minority persons.

The defendants, who are sued in their official capacity and individually, are Gallagher, Glover and Canfield, the members of the Civil Service Commission of the City of Minneapolis; Proctor, the Personnel Director of the Commission; and Fire Chief Hall.

The court permitted the case to proceed as a class action. No challenge is made to class representation.

The Minneapolis Commission on Human Relations has intervened on behalf of plaintiffs. Fire Fighters Association of Minneapolis, Associated Fire Fighters of Minnesota and International Association of Fire Fighters have jointly filed amici curiae brief in support of defendants' position.

Included in the petition is another class represented by plaintiffs Harris and Hill consisting of:

(c) All those persons who would qualify as veterans pursuant to Minnesota Statute 197.45 in seeking to claim a veterans' preference pursuant to said section but for the state and local durational residency requirements imposed therein.

The class "c" plaintiffs make the contention that the five-year durational residency requirement incorporated in the definition of veterans in the Veterans Preference Act, Minnesota Statute 197.45, unconstitutionally imposes a penalty on the right to travel interstate. A three-judge court was designated to try such issue and hence the issue is not adjudicated in the present action. Judge Larson, who tried this case, entered a temporary restraining order prohibiting defendants from denying veterans preference under § 197.45 to any applicant for employment by reason of failure to meet residence requirements incorporated in the statute. Appeal from the granting of the temporary restraining order has been taken. However, no attack on the order is made in the briefs, and hence we give such issue no consideration at this time.¹

Plaintiffs assert that the recruitment, examination and hiring practices of defendants with respect to the fire department deny Blacks, Indians and other members of minority groups the right to due process of law and equal protection of the law guaranteed by the Fourteenth Amendment and the right not to be discriminated against in employment by reason of race as guaranteed by 42 U.S.C.A. § 1981.

This case was tried to the court. Much of the evidence was stipulated. An evidentiary hearing was held, a number of witnesses were produced and examined. The evidence to the extent necessary will be discussed in the course of the opinion.

Judge Larson made 146 findings of fact, which generally upheld plaintiffs' contentions, and appropriate conclusions of law. Based thereon, he entered a decree, not reported, on March 9, 1971, which reads as follows:

"The plaintiffs have moved this Court for various injunctive orders requiring the defendants to implement certain hiring practices and procedures with respect to the position of fire fighter within the Minneapolis Fire Department. The plaintiffs have also moved the Court to request the convening of a three-judge court to hear and determine the constitutionality of the five-year State and local residency requirement incorporated in the Minnesota Veterans Preference Act and to enjoin the enforcement of the requirement of said Act pending the hearing and determination of the three-judge court.

"On the basis of the record and the proceedings herein, the evidence presented to the Court, the arguments of counsel, and the findings of fact and conclusions of law filed in this case this date, it is the ORDER, JUDGMENT and DECREE of this Court:

"1. That the defendants herein, their successors in office, agents, servants, and employees, and all persons in active concert or participation with them, give absolute preference in certification as fire fighters with the Minneapolis Fire Department to twenty (20) Black, American-Indian, or Spanish-surnamed-American applicants for fire fighter who qualify for such positions on the basis of the examinations given pursuant to the Minneapolis Civil Service Commission fire fighter examination plan number 8326, or subsequent examination plans, and who meet the requirements of said examination plans as amended pursuant to paragraph seven (7) of this Decree.

"2. That the defendants herein, their successors in office, agents, servants, and employees, and all persons in active concert or participation with them.

(a) establish an eligibility list of all Black, American-Indian, or Spanish-surnamed-American applicants for the position of fire fighter with the Minneapolis Fire Department who qualify for such positions on the basis of the examinations given pursuant to the Minneapolis Civil Service Commission fire fighter examination plan number 8326 and who meet the requirements of said examination plan as amended pursuant to paragraph seven (7) of this Decree, and

(b) rank said minority applicants in order of their relative standing on said examinations with those persons eligible for a veterans preference or for a residence preference given such preference on said eligibility list, and

(c) Proceed with the certification of fire fighter applicants from the full eligibility list established on the basis of said examinations only after twenty positions have been filled from the eligibility list established pursuant to paragraph 2(a) of this Decree or after all persons on the eligibility list established pursuant to paragraph 2(a) of this Decree have been offered certification for the position of fire fighter with the Minneapolis Fire Department and have had a period of five (5) business days within which to accept or reject such certification.

(d) In the event that all preferred minority positions are not filled from the register established by examination plan number 8326, the same procedure will be followed on succeeding examination plans until all such twenty (20) preferred positions are filled by minority applicants.

"3. That the defendants herein, their successors in office, agents, servants and employees, and all persons in active concert or participation with them, are enjoined from enforcing the provisions of Minnesota Statutes § 197.45 and the provisions of the Minneapolis City Charter, chapter 19, sections 7 and 15, insofar as such enforcement is in conflict with the Order of the Court contained in paragraph one (1) of this Decree.

"4. That the defendants Gallagher, Canfield, Glover, Proctor, and White, their successors in office, agents, servants, and employees, and all persons in active concert or participation with them, shall reopen the application period for the next examination for the position of fire fighter for the primary purpose of receiving applications from Blacks, American-Indians, or Spanish-surnamed-American persons for a period of two weeks to commence forthwith upon the completion and implementation of the affirmative recruitment program required pursuant to paragraph five (5) of this Decree.

"5. That the defendants herein, their successors in office, agents, servants, and employees, and all persons in active concert or participation with them, shall prepare and submit to the Court and counsel for the plaintiffs and the plaintiff-intervenor, no later than two weeks from the date of this Decree a plan for affirmative action for the recruitment of Black, American-Indian, and Spanish-surnamed-American persons for the position of fire fighter with the Minneapolis Fire Department, which plan shall include:

(a) Provision for the active participation in such affirmative action program of all the defendants in this action,

(b) Provision for consultation by the defendants herein and members of the staff of the Minneapolis Civil Service Commission

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