Firefighters Inc. for Racial Equality v. Bach, No. 78-K-119.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtDarlene Ebert, Asst. City Atty., Denver, Colo., for City and County of Denver
Citation611 F. Supp. 166
PartiesFIREFIGHTERS INCORPORATED FOR RACIAL EQUALITY, a Colorado nonprofit corporation; Frank E. Quintana; Fred H. Fernandez; Andrew Archuleta; Richard Nuanes; Jose F. Archuleta; Phil Apodaca; Ernest B. Arellano; Karl Cordova; Leonard V. Cardenas; James Hicks; Michael Ramos; L.M. Cruz; Raymond Gabaldon; Richard Deherrera; Nick Nuanes; Richard L. Roach; John P. Drogheo; Onesio Cole and Margarito Franco, v. Ted BACH, Oseald C. Abernethy, Jesse Manzanares, individually and as Commissioners of the City and County of Denver Civil Service Commission; Merle K. Wise, individually and as Chief of the Fire Department for the City and County of Denver; Dan Cronin, individually and as Manager of Safety of the City and County of Denver; and the City and County of Denver.
Decision Date11 June 1985
Docket NumberNo. 78-K-119.

611 F. Supp. 166

FIREFIGHTERS INCORPORATED FOR RACIAL EQUALITY, a Colorado nonprofit corporation; Frank E. Quintana; Fred H. Fernandez; Andrew Archuleta; Richard Nuanes; Jose F. Archuleta; Phil Apodaca; Ernest B. Arellano; Karl Cordova; Leonard V. Cardenas; James Hicks; Michael Ramos; L.M. Cruz; Raymond Gabaldon; Richard Deherrera; Nick Nuanes; Richard L. Roach; John P. Drogheo; Onesio Cole and Margarito Franco,
v.
Ted BACH, Oseald C. Abernethy, Jesse Manzanares, individually and as Commissioners of the City and County of Denver Civil Service Commission; Merle K. Wise, individually and as Chief of the Fire Department for the City and County of Denver; Dan Cronin, individually and as Manager of Safety of the City and County of Denver; and the City and County of Denver.

No. 78-K-119.

United States District Court, D. Colorado.

June 11, 1985.


611 F. Supp. 167

Paul A. Baca, Denver, Colo., for plaintiffs.

Darlene Ebert, Asst. City Atty., Denver, Colo., for City and County of Denver.

Walter C. Brauer, III, Denver, Colo., for intervenors.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

In 1978, plaintiffs brought this class action on behalf of all mexican american and black firefighters in the Denver Fire Department. They allege that defendants have discriminated against them in violation of the Civil Rights Act of 1870, 42 U.S.C. § 1981; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d through 2000e-17. Particularly, plaintiffs challenge the defendants' seniority and promotion practices.

I previously held that the promotion practices of the Denver Fire Department have a discriminatory impact on minority firefighters. 522 F.Supp. 1120, 1126 (1981). I found the defendants' seniority policies violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-17 (1976). 522 F.Supp. 1120, 1126. On appeal, the Tenth Circuit reversed and remanded for a determination of whether the practices alleged by the plaintiffs are part of a bona fide seniority system under § 703(h) of Title VII. 731 F.2d 664, 669 (10th Cir.1984). If so, then "§ 703(h) exempts from Title VII the disparate impact of ... such system," American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1541, 71 L.Ed.2d 748 (1982), and the plaintiffs would have to establish discriminatory treatment.

The question before me today concerns the proper allocation of the burden of proof as to whether defendants' practices are

611 F. Supp. 168
part of a seniority system and whether that system is bona fide. Plaintiffs have moved for a determination of who has the burden of proof on these issues. Specifically, plaintiffs assert that the burden of proof should be placed on defendants to establish that the seniority system in question was not created, maintained, or implemented with the intent to discriminate. In response, defendants and intervenors contend that plaintiffs have the burden of proving the seniority system is not bona fide

Allocation of Burdens of Proof

The United States Supreme Court has established three-step formulations for allocating burdens of proof in disparate treatment and disparate impact cases.1 It has not, however, addressed the allocation of burdens of proof regarding bona fide seniority systems. Absent direction on this issue, the lower courts have allocated the burdens of proof; often without clearly indicating their approach. See, e.g., Broadnax v. Missouri Pac. R.R. Co., 20 Empl. Prac.Dec. (CCH) ¶ 30,132 (E.D.Ark.1978). Because the lower courts are split and there is no controlling authority on the issue, I shall determine which of the prevailing theories should be applied based on considerations such as policy rationales and fairness.

The primary purpose of Title VII was "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668, (1973). Section 703(a) embodies this policy, prohibiting employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, ... or national origin...." 42 U.S.C. § 2000e-2(a)(1).

Another policy was recognized, however, during the congressional debate on Title VII, which conflicted with the overall purpose of Title VII. This "policy favors minimal supervision by courts and other governmental agencies over the substantive terms of collective-bargaining agreements." American Tobacco Co., 456 U.S.

611 F. Supp. 169
63, 76-77, 102 S.Ct. 1534, 1541-42, 71 L.Ed.2d 748 (1982), citing California Brewers Assn. v. Bryant, 444 U.S. 598, 608, 100 S.Ct. 814, 820, 63 L.Ed.2d 55 (1980). Since seniority provisions "are universally included in collective-bargaining contracts," Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79, 97 S.Ct. 2264, 2274, 53 L.Ed.2d 113 (1977), opponents to Title VII were concerned that the proposed statute might have an adverse effect on established seniority systems and on the concept of seniority. See H.R.Rep. No. 914, 88th Cong., 1st Sess. 64-65 (1963); U.S.Code Cong. & Admin.News 1964, p. 2355; 110 Cong.Rec. 486-89 (1964) (statement of Sen. Hill). In response to these concerns, a compromise section was introduced clarifying Title VII's effect on seniority systems. 110 Cong.Rec. 11,926, 11,931 (1964)

This section, 703(h), reflects the balance Congress struck between affording immediate equal employment opportunity for all and maximizing the freedom of employers and employees to set the terms and conditions of their employment relationship through collective bargaining. American Tobacco Co., 456 U.S. 63, 76-77, 102 S.Ct. 1534, 1541-42, 71 L.Ed.2d 748. Section 703(h) provides:

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, ... provided that such differences are not the result of an intention to discriminate because of race, color, ... or national origin....

42 U.S.C. § 2000e-2(h) (1976).

Properly read, "bona-fide seniority system" embodies the strong national policy of affording considerable latitude to the collective bargaining process, while "intent to discriminate" marks the point at which equal employment opportunity concerns must dominate. The effect of § 703(h) is to immunize bona fide seniority systems from a challenge based on a disparate impact analysis. See American Tobacco Co., 456 U.S. 63, 75, 102 S.Ct. 1534, 1541, 71 L.Ed.2d 748. In order to show that a bona fide seniority system violates Title VII, the plaintiff would have to establish discriminatory intent under a disparate treatment analysis. See General Elec. Co. v. Gilbert, 429 U.S. 125, 137 n. 14, 97 S.Ct. 401, 409 n. 14, 50 L.Ed.2d 343 (1976) (the plaintiff has "the traditional civil litigation burden of establishing that the acts ... complained of constituted discrimination in violation of Title VII").

However, this assumes it has been shown that the challenged practices of the defendant are part of a seniority system and that the seniority system is bona fide. Only upon such a showing is the disparate treatment theory applicable. If the challenged practices are not part of a seniority system or if that system is not bona fide, then there is no immunity under § 703(h), and the disparate impact analysis may be applied.

Allocation of burden of proof in seniority system cases has been the subject of several conflicting decisions. Some courts have placed the burden of proof on the plaintiff to show the system's lack of bona fides. See, e.g., Day v. Patapsco & Back Rivers R. Co., 504 F.Supp. 1301 (D.Md.1981); Younger v. Glamorgan Pipe & Foundry Co., 20 Fair Empl.Prac.Cas. (BNA) 776 (W.D.Va.1979), aff'd, 621 F.2d 96 (4th Cir. 1980) (per curiam); Trent v. Allegheny Airlines, Inc., 471 F.Supp. 448 (W.D.Pa. 1979); Chrapliwy v. Uniroyal, Inc., 458 F.Supp. 252 (N.D.Ind.1977).

Other courts, however, have viewed § 703(h) as an affirmative defense, with the defendant having the burden of proof. See, e.g., American Tobacco Co., 456 U.S. 63, 86-87, 102 S.Ct. 1534,...

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3 practice notes
  • In re Stone, Bankruptcy No. 95-03837-TBB-7. Adversary No. 95-00437.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • August 22, 1996
    ...410, 420-421 (2nd Cir.1987); United States v. Beason, 690 F.2d 439, 445 (5th Cir.1982); Firefighters Inc. for Racial Equality v. Bach, 611 F.Supp. 166, 169-171 (D.Colo.1985). Scrutiny of this non-bankruptcy case law also reveals that those references and factors which should be considered a......
  • Abril-Rivera v. Johnson, No. 14–1316.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 30, 2015
    ...8(c). We agree.”); Gunther v. Cnty. of Wash., 623 F.2d 1303, 1313 (9th Cir.1979) ; Firefighters Inc. For Racial Equal. v. Bach, 611 F.Supp. 166, 170–71 (D.Colo.1985) (“§ 703(h) fell within the general rule that statutory exemptions from remedial statutes are affirmative defenses because ‘§ ......
  • Dodd v. Runyon, No. 96-1923
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 23, 1997
    ...is such an affirmative defense under § 703(h) of Title VII, 42 U.S.C. § 2000e-2 (h). See Firefighters for Racial Equality v. Bach, 611 F.Supp. 166, 172 (D.Col.1985). However, the Supreme Court has held that this provision does not create an affirmative defense; rather, it "delineates w......
3 cases
  • In re Stone, Bankruptcy No. 95-03837-TBB-7. Adversary No. 95-00437.
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • August 22, 1996
    ...410, 420-421 (2nd Cir.1987); United States v. Beason, 690 F.2d 439, 445 (5th Cir.1982); Firefighters Inc. for Racial Equality v. Bach, 611 F.Supp. 166, 169-171 (D.Colo.1985). Scrutiny of this non-bankruptcy case law also reveals that those references and factors which should be considered a......
  • Abril-Rivera v. Johnson, No. 14–1316.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 30, 2015
    ...8(c). We agree.”); Gunther v. Cnty. of Wash., 623 F.2d 1303, 1313 (9th Cir.1979) ; Firefighters Inc. For Racial Equal. v. Bach, 611 F.Supp. 166, 170–71 (D.Colo.1985) (“§ 703(h) fell within the general rule that statutory exemptions from remedial statutes are affirmative defenses because ‘§ ......
  • Dodd v. Runyon, No. 96-1923
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 23, 1997
    ...is such an affirmative defense under § 703(h) of Title VII, 42 U.S.C. § 2000e-2 (h). See Firefighters for Racial Equality v. Bach, 611 F.Supp. 166, 172 (D.Col.1985). However, the Supreme Court has held that this provision does not create an affirmative defense; rather, it "delineates w......

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