Firefighters Institute for Racial Equality v. City of St. Louis, Mo.
| Decision Date | 22 December 1978 |
| Docket Number | No. 78-1294,78-1294 |
| Citation | 588 F.2d 235 |
| Parties | 18 Fair Empl.Prac.Cas. 1083, 18 Empl. Prac. Dec. P 8767 FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, a corporation, George Baker, Robert D. Morgan, Robert Grady, Sherman George, George Redford Turner, Lawrence L. Britt, Vernon Ammons, Wendell H. Goins, Charles Gay, George E. Horne, William L. Young, Daniel S. Austin, Robert Anderson, John H. Harvey, Joseph P. Hughes, Eugene Stanton, Preston Sims, each Individually and on behalf of all other persons similarly situated, Appellants, v. The CITY OF ST. LOUIS, MISSOURI, a Municipal Corporation, Division of Fire & Fire Prevention, Department of Public Safety, City of St. Louis, Missouri, Frank C. Cummings, in his capacity as Acting Chairman of the Civil Service Commission of City of St. Louis, Missouri, Fred Gould, in his capacity as a member of the Civil Service Commission, City of St. Louis, Missouri, Charles Marino, in his capacity as Director, Department of Public Safety, City of St. Louis, Missouri, Denis D. Broderick, Individually and in his capacity as Fire Chief of the City of St. Louis, Missouri, R. Elliott Searce, Individually and in his capacity as Director of the Department of Personnel, City of St. Louis, Missouri, and United States of America, Appellees, and Joseph Blessing, Michael Davis, Robert Crowley, David Banta, Andrew Rios, George Hohmann, Don Blackwell, Nick Altmeyer and George Tschlis, Each Individually and as Members of a Class, Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David A. Lang, St. Louis, Mo., argued and on brief, for appellant.
James J. Gallagher (formerly of City Counselor's office), St. Louis, Mo., (argued), and Jack L. Koehr, City Counselor, St. Louis, Mo., on brief, for appellee, City of St. Louis.
Gerald F. George, Atty., Civ. Rights Div., Dept. of Justice, Washington, D. C. (argued), David L. Rose, Washington, D. C., Drew S. Days, III, Asst. Atty. Gen., Washington, D. C., and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee, Dept. of Justice.
Jerome A. Diekemper of Barley, Goffstein, Bollato & Lange, Clayton, Mo., argued and on brief, for intervenor, Joseph Blessing.
Before HEANEY and STEPHENSON, Circuit Judges, and VAN SICKLE, * District Judge.
This is the latest appeal in protracted litigation, challenging the employment practices of the St. Louis Fire Department. Members of the Firefighters Institute for Racial Equality (F.I.R.E.) and several named plaintiffs brought this action in January, 1974, against the City of St. Louis and various City officials, alleging racial discrimination against blacks in the hiring and promotion of personnel in the St. Louis Fire Department. F.I.R.E. also challenged the existence of racially segregated eating arrangements, or "supper clubs," maintained by white employees in the City's firehouses. The action was brought under 42 U.S.C. §§ 1981, 1983 and 2000e Et seq. The United States subsequently filed suit under § 2000e Et seq. as well, charging the City with the "pattern or practice" of discrimination in violation of Title VII of the Civil Rights Act of 1964. The cases were consolidated for trial. The intervenors, representing a class of non-black employees and candidates for employment in the Fire Department, were permitted to intervene on behalf of the City.
On April 9, 1976, the District Court entered an order in which it found for the City on all counts. This order was amended by a nunc pro tunc order issued by the District Court on June 28, 1976. In that order, the court found that the examination which the City had used for the entry level position of firefighter had a disparate racial effect and was not validated. 1 The order required that the City attempt to achieve a fifty percent hiring rate of blacks for firefighter positions over the next five years. F.I.R.E., the named plaintiffs and the United States appealed. 2
On appeal, this Court affirmed the District Court with regard to the City's use of a particular examination for the position of battalion chief and with regard to the City's refusal to promote a particular individual, George Horne. Firefighters Institute, Etc. v. City of St. Louis, 549 F.2d 506, 515-516 (8th Cir.), Cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977). We found, however, that the examination administered in 1974 for promotion to the position of fire captain had a racially disparate effect to the disadvantage of minority candidates, and that the City had failed to demonstrate that the test was sufficiently job related to justify its use. Id. at 509-513. We remanded the case to the District Court with directions that it maintain continuing jurisdiction until a valid examination is devised by the parties and approved by that court. Id. At 513-514. We also found that the maintenance of segregated supper clubs by white employees in the City's firehouses violated Title VII, and directed the District Court, on remand, to supervise the promulgation of regulations by the Fire Department which would prohibit the use of City's facilities for such activities. Id. at 515.
On October 21, 1977, the District Court entered an order which permanently enjoined the City from engaging in any practice with respect to promotion to the rank of fire captain which had the purpose or effect of discriminating against any black applicant on the basis of race. The order permanently enjoined the use of the 1974 test results as the basis for either permanent or temporary (acting) appointments to the position of fire captain, except as provided therein. It enjoined the City from making any permanent appointments to the position of fire captain unless made on the basis of a valid examination or, pending the development of a valid examination, unless fifty percent of such vacancies were filled with qualified blacks. The order provided that all black applicants who passed the 1974 test and who were on the 1974 eligibility list were to be deemed qualified during this interim period. In the event that all blacks on that list were offered employment and the defendants desired to make further permanent appointments during this interim period, the parties were directed to determine an appropriate basis for the appointment of black firefighters who are otherwise qualified for promotion under time-in-grade and efficiency rating standards. 3 The order also provided that, to the extent practicable, the fifty percent goal established for permanent appointments during the interim period should also be followed for temporary appointments during this period. The court also directed the City to promulgate regulations to assure that any segregation in communal eating arrangements in firehouses ceased.
On January 26, 1978, the District Court entered an order setting aside its order of October 21, 1977. The court expressed its "deep disappointment with the intransigence of all parties and their continued unwillingness to conscientiously and industriously seek an acceptable procedure for filling the numerous vacancies existing in the position of Fire Captain, which vacancies should be filled if the safety of the persons and properties of St. Louisans is to be assured." The court then reiterated the provisions of its previous order, with the exception of those provisions governing the appointment of individuals to fire captain positions pending the development of a valid examination. Instead of requiring that any such interim appointments to permanent positions be made in accordance with a fifty percent black promotional goal, as specified in the previous order, the revised order provides that such appointments may be made as follows: A racially identified list of all firefighters, who have served five years or more as firefighters, is to be drawn up in the order of departmental seniority. The black firefighter with the most seniority and the white firefighter with the most seniority will then be offered the opportunity to be evaluated by the Assessment Center technique. 4 The individual receiving the higher evaluation is then to be promoted, regardless of his race. The firefighter who is not promoted remains eligible for the next fire captain vacancy and is evaluated along with the black firefighter and the white firefighter with the next highest seniority. The two unsuccessful candidates for that vacancy remain eligible for the next vacancy, and so on. The order contains no provisions governing temporary appointments to fire captain positions, except for a general prohibition against the use of the 1974 test results as the basis for any appointments to the position of fire captain, whether on a temporary or permanent basis.
F.I.R.E. contends that the remedy contained in the District Court's order of January 26, 1978, is inadequate on several grounds. 5 It contends that the procedure provided in the order for the promotion of individuals to permanent fire captain positions pending the development of a valid examination is inadequate in that it fails to guarantee that any black firefighters will be promoted. It argues that elimination of the effects of past discrimination requires the imposition of a fifty percent black promotional goal, similar to that provided in the District Court's previous order of October 21, 1977. F.I.R.E. also contends that since the firefighters who serve as acting fire captains gain valuable supervisory experience which will give them a competitive advantage on any test for fire captain positions which is developed later, these assignments should also, as far as practicable, reflect a fifty percent black ratio.
The City responds, first, that since the appellants adduced only general statistical information as to the disparate impact of the 1974 examination upon blacks, 6 there is no evidence of racial discrimination which would justify the...
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