Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland

• Decision Date: 27 January 2012
• Docket Number: No. 09–4208.,09–4208.
• Citation: 114 Fair Empl.Prac.Cas. (BNA) 398,669 F.3d 737,95 Empl. Prac. Dec. P 44409
• Parties: CLEVELAND FIREFIGHTERS FOR FAIR HIRING PRACTICES, et al.; Cleveland Firefighters, Local 93 IAFF, Plaintiffs–Appellees, v. CITY OF CLEVELAND, et al., Defendants.Lamont C. Headen; Sherman E. Kitchen; Jerry L. Lett; Harned R. Gaitor, Plaintiffs–Appellants,Vanguards of Cleveland, Intervenor Plaintiff–Appellant, v. City of Cleveland, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

114 Fair Empl.Prac.Cas. (BNA) 398

669 F.3d 737

95 Empl. Prac. Dec. P 44,409

CLEVELAND FIREFIGHTERS FOR FAIR HIRING PRACTICES, et al.; Cleveland Firefighters, Local 93 IAFF, Plaintiffs–Appellees,

v.CITY OF CLEVELAND, et al., Defendants.Lamont C. Headen; Sherman E. Kitchen; Jerry L. Lett; Harned R. Gaitor, Plaintiffs–Appellants,Vanguards of Cleveland, Intervenor Plaintiff–Appellant,

v.City of Cleveland, et al., Defendants–Appellees.

No. 09–4208.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2011.Decided and Filed: Jan. 27, 2012.

ARGUED: E. Richard Stege, Jr., Stege & Michelson Co., LPA, Cleveland, Ohio, for Appellants. Andrew P. Fleming, Chiacchia & Fleming, LLP, Hamburg, New York, Kevin J. Gibbons, City of Cleveland, Department of Law, Cleveland, Ohio, for Appellees. ON BRIEF: E. Richard Stege, Jr., Stege & Michelson Co., LPA, Cleveland, Ohio, for Appellants. Andrew P. Fleming, Chiacchia & Fleming, LLP, Hamburg, New York, Kevin J. Gibbons, City of Cleveland, Department of Law, Cleveland, Ohio, Daniel A. Powell, Thomas M. Hanculak, Law Offices of Joseph W. Diemart & Associates, Cleveland, Ohio, for Appellees.

Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.

KETHLEDGE, J., delivered the opinion of the court, in which McKEAGUE, J., joined. KEITH, J. (pp. 743–56), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

At most the Constitution barely tolerates a public employer's decision to hire or reject a job applicant based upon her race. Race-neutrality is the promise of the Equal Protection Clause; and the law permits a public employer to depart from that rule only reluctantly, in circumstances limited in both scope and duration. Namely, a public employer can hire or reject applicants based upon their race only to the extent, and only so long as, its use of racial classifications serves to remedy specific instances of past discrimination by that same employer. These limitations are long settled in the law. It is the affirmative duty and province of the courts to apply them.

Here, the district court found in 1975 that the City of Cleveland had discriminated against minorities in its hiring of entry-level firefighters. In 1977, the court approved a consent decree that included racial classifications as a remedy for that discrimination. The decision before us now is the court's refusal, in 2009, to extend the life of the decree—and thus its racial classifications—for another six years. Although the court couched its decision in terms of whether the decree's provisions remained “necessary,” the question more precisely stated is whether, 31 years out, the decree's racial classifications continue to remedy past discrimination by the City's Fire Department. The district court did not make specific findings as to that question. It needs to make those findings before deciding whether to extend or terminate the decree. We vacate the court's decision and remand for it to do so.

I.

Lamont Headen and several other African–American residents of Cleveland brought a class-action lawsuit against the City in 1973 after it rejected their applications to be firefighters. At that time, African–Americans comprised 40% of the City's population but only four percent of its firefighters. After an evidentiary hearing, the district court found in 1975 that the City had unlawfully discriminated against minorities in hiring firefighters.

In 1977, the City and Headen submitted for court approval a consent decree that required the City to implement race-based criteria to remedy its past discrimination in firefighter hiring. Specifically, for each round of firefighter hiring that the City conducted, the decree required the City to hire at least the percentage of minorities who had passed the most recent entrance examination (the “ Headen ratios”). The district court approved the consent decree. The decree was amended in 1984, but this provision remained essentially unchanged.

A more significant amendment came in 2000. In that year, the City moved to stay further execution of the decree, and a group called Cleveland Firefighters for Fair Hiring Practices (the “Cleveland Firefighters”) brought a lawsuit challenging the decree's constitutionality. In response, the Vanguards of Cleveland—a minority-firefighter organization that by then had been made a party to the suit—defended the decree's constitutionality and alleged that the City had continued to discriminate against minorities. The City denied the allegation.

The district court resolved these issues by entering a second amended consent decree in September 2000. That decree recited that the percentage of minority firefighters in the City's fire department had increased to 26%. The decree established, for the first time, a goal of increasing that percentage to 33 1/3%. To that end, a related order changed the Headen ratios to require that at least one out of every three new hires be a minority applicant. The decree also required the City to conduct an additional three rounds of firefighter hiring (each from an “eligible list” of applicants who have passed the entrance exam) pursuant to the new Headen ratios. The decree required the City to conduct these additional hiring rounds by September 29, 2008, but stated that “[t]he parties understand that there may be legitimate circumstances which may prevent” the City from doing so. In that event, the decree provided, the City could petition the court for a “reasonable extension of time” to make those hires, which extension “shall be approved” if “the City has made a good faith effort to meet the September 29, 2008 deadline.”

A combination of events prevented the City from hiring any new firefighters after the second amended decree was entered. Most significantly, in 2003 the Ohio Police and Fire Pension fund established a new program—known as “DROP”—whose effect was to encourage retirement-eligible firefighters to continue working. As of June 2008, 211 Cleveland firefighters had enrolled in the program, which meant the City could make 211 fewer new hires, which as a practical matter meant it could make no new hires at all. Instead, as a result of a budget crisis, the City laid off 70 firefighters in 2004. To the extent the City has hired any firefighters since then, it has only re-hired the laid-off ones.

The City recited these circumstances when it moved, on September 26, 2008, for an extension of the September 29, 2008 deadline. The Vanguards likewise moved on September 29 to “Extend the Terms of the Second Amended Consent Decree [.]” The Cleveland Firefighters opposed the decree's extension on the grounds that the decree was no longer necessary and had already been in effect for more than 30 years. These motions landed on the docket of a new district court judge, the prior judge having passed away in 2006.

The district court held an evidentiary hearing with respect to the motions in May 2009. At the hearing's end, the court requested briefing as to whether continued judicial supervision over the City's hiring of firefighters remained necessary. The parties disregarded that request. Instead, they presented the court with a proposed third amended consent decree that would extend for six more years—to December 31, 2014—the court's supervision of the City's firefighter hiring processes generally and the application of its racial classifications specifically. The court thereafter held a status conference at which it told the parties that a six-year extension of the decree was “unacceptable,” and invited them to make another proposal. The parties chose not to do so.

In an order dated August 29, 2009, the district court ruled on the motions to extend. The court cited the 2000 finding that “26% of the City's firefighters were minorities,” which the court said was “a significant increase from the mere 4% that was cited by Plaintiffs at the outset of this case [.]” That increase, the court found, “constitutes substantial compliance with the arbitrary, aspirational goal of 33 1/3% minority representation in the Fire Department[.]” But the court's main point was that the decree had already been in effect long enough. The court noted that the impact of its decision as to whether to extend the decree would “extend well beyond” the interests of the parties to this litigation, affecting future applicants for firefighter positions and city residents generally. The court also observed that the parties were asking it “to allow a Third Amended Consent Decree” whose term would stretch to “41 years since this case was filed in this Court.” And the court found that, “[b]y all accounts, the City has devised and implemented a plan for the recruitment of minority firefighter candidates,” and that “the City currently has in place a foundation that will lead to increased minority representation in the Fire Department once the economy allows for a more normal hiring process to resume.” Thus, the court concluded, “judicial monitoring” of the City's hiring of firefighters “is no longer a necessity.” The court therefore denied the motions to extend the decree's effective dates, and terminated the case.

This appeal followed.

II.

“We review a district court's termination of supervision and jurisdiction over a consent decree for an abuse of discretion.” Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.1998). “The appellant has the burden of proof on appeal to show that there was no reasonable basis for the district court's termination order.” Id.

The appellants here—the plaintiffs de jure, and the City de facto—attempt to meet their burden primarily by arguing that the district court's termination of the decree was contrary to the decree's terms. Although the decree itself is opaque on the point, it appears to be common ground among the parties and the district court that, absent an extension, the decree would expire by its terms on September 29, 2008. But the plaintiffs point to the second amended decree's...