Dennison v. City of Los Angeles Dept. of Water and Power
| Decision Date | 05 October 1981 |
| Docket Number | No. 80-5061,80-5061 |
| Citation | 658 F.2d 694 |
| Parties | 26 Fair Empl.Prac.Cas. 1739, 27 Empl. Prac. Dec. P 32,168 Timothy F. DENNISON, et al., Intervenors-Appellees, v. CITY OF LOS ANGELES DEPARTMENT OF WATER AND POWER, et al., Defendants- Appellees. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 18, on behalf of its members, et al., Plaintiffs-Appellants, v. CITY OF LOS ANGELES DEPARTMENT OF WATER AND POWER, et al., Defendants- Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Laurence D. Steinsapir, Schwartz, Steinsapir, Dohrmann & Krepack, Los Angeles, Cal., for Intern. Broth. of Electrical Workers.
A. Thomas Hunt, Los Angeles, Cal., argued for defendants-appellees; Terso R. Rosales, Los Angeles, Cal., on brief.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS and CANBY, Circuit Judges, and BATTIN, District Judge *.
The International Brotherhood of Electrical Workers (IBEW) on behalf of non-minority employees of the Los Angeles Department of Water and Power (Department) appeals the district court's grant of summary judgment to the Department and Dennison. The union contends that the court erred in refusing to compensate non-minority employees denied promotions as a result of an affirmative action program established pursuant to a consent decree between the Department and Dennison. The district court held that the IBEW action was barred as a collateral attack on the consent decree. Alternatively, it concluded that even if the suit was not a collateral attack, the consent decree was proper and the employees were not entitled to any compensation. We affirm the district court's decision on the ground that the present action is an impermissible collateral attack.
In 1973, Dennison, on behalf of himself and other similarly situated minority employees, brought suit against the Department. He alleged that its hiring and promotion policies discriminated on the basis of race and national origin. In February 1977, the parties settled the class action by entering into a consent decree. Part of the decree provides that 50% of all initial hirings and promotions will be awarded to qualified black and hispanic class members until all identifiable past applicants have had the opportunity to be hired or promoted at least once. The affirmative action provisions are to remain in effect until February 1987.
On March 21, 1977, the district court conducted a Fairness Hearing to allow persons who had previously submitted written objections to the consent decree the opportunity to present orally their objections to the court. Written notice of the hearing was sent to all employees. The IBEW appeared at the hearing and, among other objections, criticized the adverse impact of the consent decree on non-minority employees. On March 24, 1977, the district court approved the consent decree.
In October 1977, Kennedy and Balsz, two non-minority employees, took promotion examinations. As a result of the affirmative action program required by the Dennison consent decree, they were denied promotions. Both filed charges of discrimination with the Equal Employment Opportunity Commission and in January 1979 each received a Notice of Right to Sue. In March, 1979, Kennedy, Balsz and the IBEW initiated this suit.
It is settled that a consent decree is not subject to collateral attack, Culbreath v. Dukakis, 630 F.2d 15, 22 (1st Cir. 1980); O'Burn v. Shapp, 70 F.R.D. 549 (E.D.Pa.1976) aff'd without opinion 546 F.2d 417 (3d Cir. 1976) cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977); Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.) aff'd without opinion 573 F.2d 1294 (2d Cir. 1977) cert. denied 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978). See Black and White Children v. School District, 464 F.2d 1030 (6th Cir. 1972) (per curiam); Burns v. Board of School Commissioners, 437 F.2d 1143 (7th Cir. 1971) (per curiam). IBEW contends, however, that it is not contesting the validity of the decree; rather it seeks monetary relief for those non-minority employees adversely affected by the affirmative action provision. The district court properly rejected this argument as substantively, albeit not formally, an impermissible collateral attack.
Compensatory relief is generally intended to make whole the plaintiff for any losses he may have incurred as a result of the defendant's wrongdoing. Thus implicit in the IBEW's prayer for relief is the contention that the operation of the consent degree itself constitutes a compensable wrong. So to hold in this proceeding would be to permit a collateral attack on the consent decree.
Awarding compensatory relief to the non-minority employees would impose conflicting or inconsistent obligations on the Department. Each time the Department attempted to comply with the affirmative action program by promoting a minority employee, it would have to give an equivalent amount of compensation to a non-minority employee who would have been promoted but for the consent decree. That extra compensation would drastically increase the cost of each promotion and would burden the Department for complying with the consent decree. The decree established who was entitled to promotion, and the present action indirectly seeks to confer the benefits of promotion on others. The relief sought in the present action is accordingly in conflict with the decree.
Moreover, we feel that permitting the IBEW to sue for compensation would be inimical to the policy underlying Title VII of promoting settlements. Cf. Alexander v. Gardener-Denver Corp., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974); United States v. City of Miami, 614 F.2d 1322, 1331-32 (5th Cir. 1980) (citing cases). The Department would in effect be forced to walk a tightrope. If it refused to enter...
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