Edwards v. City of Houston

Decision Date01 April 1996
Docket Number93-2476,Nos. 93-2315,AFL-CI,L,s. 93-2315
Citation78 F.3d 983
PartiesDorothy A. EDWARDS; Afro-American Police Officers League; Houston Police Organization of Spanish Speaking Officers; Lionel Aaron; Bennie Conway; Clement B. Crosby, Jr.; Jose A. Garcia; Richard C. Garcia; Maria L. Guillory; Anthony R. Jammer; Charles A. McClelland; Silas Montgomery, Jr.; Clyde Phillpot; Carl Wayne Reed; Richard M. Spencer; Bruce D. Williams; Plaintiffs-Appellees, Terry Hughes, individually and as a representative of the Houston Airport Police Officers Association and its Officers and Sergeants of the former Airport Police Force, Houston Police Patrolmen's Union, and the Individual Peace Officers Identified in Appendix A, an affiliate of the International Union of Police Associationsocal 109; Haril Walpole; Frank L. Adamek; Joe M. Aldaco; William E. Baker; T. Barankowski; Jerry A. Briscoe; Ronnie P. Brooks; Gregory P. Countie; J. Devereux; Russell Feussel; Barbara Gastmyer; James Klein; Donald Klepac; Steven McCreary; Donnie Pardue; James Pritchard; L.N. Rackley; J.R. Roberts; Jackie Shallington; Dennis Spradlin; Stanley Stephens; B.G. Willoughby; Thomas Zielinski; Jeffrey E. Bickel; Monty T. Bradney; Norman E. Graham; Jeffrey L. Hatfield; Roy P. Moody; Arthur Osborne; Cheri A. Page; Vincent C. Russo; W.J. Wissel, Jr.; Movants-Appellants, Herman L. Mar; Lily M. Yep; Norman Wong; Sonny N. La; John Lei; John Chen; Phoung T. Nguyen; Michael H. Gee; Steven Lee; Mailow Seto; Jimmy S.C. Chau; Peter B. Dahlman; Movants, Andrew L. Kelley; Anthony Comeaux; Robert L. Crane; James L. Dotson; Barbara J. Ellison; Steven Funderburk; Donald R. Hardy; John R. McDonald; Alvin V. Young, Sr., Consolidated Plaintiffs, Willie Fields; Bennie L. Green; Richard Humphrey; McLoy Medlock; Consolidated Plaintiffs-Appellants, v. CITY OF HOUSTON, Defendant-Appellee. Dorothy A. EDWARDS; Afro-American Police Officers League; Houston Police Organization of Spanish Speaking Officers; Lionel Aaron; Bennie Conway; Clement B. Crosby, Jr.; Jose A. Garcia; Richard C. Garcia; Maria L. Guill
CourtU.S. Court of Appeals — Fifth Circuit

Sharon Rachel Vinick, Washington, D.C., Richard T. Seymour, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for plaintiffs-appellees.

Joan M. Lucci Bain, Bain & Bain, Houston, TX, Stuart M. Nelkin, Nelkin & Nelkin, Houston, TX, for movants-appellants.

Michael M. Essmyer, Essmyer & Associates, Houston, TX, for Terry Hughes.

Pauline Ng Lee, Houston, TX, for movants.

Mark T. McDonald, Houston, TX, for Andrew L. Kelley.

Robert L. Penrice, Texas City, TX, for consolidated plaintiffs.

Willie Fields, Houston, TX, pro se.

Bennie L. Green, Houston, TX, pro se.

Richard Humphrey, Houston, TX, pro se.

Jaqueline Elaine Medlock, Houston, TX, for McLoy Medlock, Willie Fields, Bennie Green, and Richard Humphrey.

Mark Ruth Thompson, Houston, TX, John E. Fisher, Senior Assistant City Attorney, Office of the City Attorney for the City of Houston, Houston, TX, for City of Houston.

Oscar Freer Jones, III, Victoria, TX, for amicus curiae.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge and REYNALDO G. GARZA, 1 KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges. 2

DUHE, Circuit Judge:

African-American and Hispanic-American members of the Houston Police Department brought an employment discrimination suit against the City of Houston ("City"). Groups representing white, female, and Asian-American police officers, as well as members of the Houston airport and parks police agencies, moved to intervene in the lawsuit to contest the Consent Decree that the parties had negotiated in settlement of this litigation. The would-be intervenors complained that their interests were not adequately represented by the parties in the negotiation and drafting of this Consent Decree, and as a result it impairs their interests.

The district court denied the motions to intervene in the underlying case and to intervene "for purposes of appeal only" and upheld the Consent Decree. On appeal, a panel of this court affirmed the district court's denial of the motions to intervene in the underlying case and approval of the Consent Decree, but reversed the district court's denial of the motions to intervene for purposes of appeal. 3 Subsequently, this court agreed to rehear the case en banc, and has concluded that the district court erred in denying the motions to intervene in the underlying case. Accordingly, we reverse the district court's denial of the Houston Police Patrolmen's Union's and the Houston Airport Police Officers' Association's motions to intervene in the underlying case, 4 vacate the district court's order approving the Consent Decree, and remand the cause to the district court. On remand, the district court shall allow these would-be intervenors to intervene with the rights of full parties; grant these new parties sufficient time for discovery to prepare to oppose the Consent Decree; and hold another "fairness hearing" after such time for discovery at which the interests of all affected parties can be adequately represented.

I. Background 5

The original Complaint was filed on August 19, 1992, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., as amended by the Civil Rights Act of 1991 and the Equal Employment Opportunity Act of 1972. The plaintiffs filed timely charges of racial discrimination with the EEOC between August 29, 1991 and March 26, 1992, alleging that the City's promotional examinations for the ranks of Sergeant and Lieutenant in the Houston Police Department ("HPD") discriminated against African- Americans and Hispanic-Americans. 6 Efforts to obtain redress for HPD's allegedly discriminatory promotional tests began, however, in 1975 and 1976, when Kelley v. Hofheinz, C.A. No. H-75-1536, and Comeaux v. City of Houston, C.A. No. 76-H-1754, 7 were filed.

Among other issues, the Kelley and Comeaux cases raised the claim that the HPD's promotional examinations discriminated against African-American police officers based on their race in violation of Title VII. These challenges were based upon 1975 and 1976 EEOC charges of racial discrimination in the promotional tests. In 1979, the Comeaux action was consolidated into Kelley. In March 1982, plaintiffs from the original Kelley action filed discovery requests. In 1983, there were unsuccessful settlement discussions between the consolidated Kelley plaintiffs and the City. No further actions were taken to advance the litigation until 1992.

On April 16, 1992, the City refused to consent to the intervention in Kelley of the Afro-American Police Officers League, the Houston Police Organization of Spanish Speaking Officers, and a group of African-American and Hispanic-American police officers. On April 17, 1992, these groups moved to intervene in Kelley, alleging that they had been harmed by racially discriminatory promotional examinations for the ranks of Sergeant and Lieutenant in the HPD, that the disposition of Kelley could impair their interests, and that in light of the passage of time, their interests were not being represented effectively in Kelley. On the same day, the City moved to dismiss Kelley for want of prosecution.

On June 18, 1992, the district court dismissed all claims in Kelley for want of prosecution except for test-promotion related claims accruing after January 1, 1982. The district court also denied the application for leave to intervene, ordered the applicants for intervention to file a new lawsuit to be transferred to the same judge, directed that the remainder of Kelley be consolidated into the new lawsuit, and ordered that the new plaintiff class consist of African-Americans and Hispanic-Americans. As ordered by the district court, the Afro-American Police Officers League, the Houston Police Organization of Spanish Speaking Officers, and a group of African-American and Hispanic-American police officers (collectively "Plaintiffs") timely filed a new suit on August 19, 1992, after receipt of Notices of Right to Sue issued by the United States Attorney General, and the remnants of the Kelley case were consolidated into this new action.

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