Germann v. Kipp

• Decision Date: 07 April 1977
• Docket Number: No. 76CV0036-W-4.,76CV0036-W-4.
• Citation: 429 F. Supp. 1323
• Parties: John GERMANN et al., Plaintiffs, v. Robert KIPP et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

429 F. Supp. 1323

John GERMANN et al., Plaintiffs, v. Robert KIPP et al., Defendants.

No. 76CV0036-W-4.

United States District Court, W. D. Missouri, W. D.

April 7, 1977.

COPYRIGHT MATERIAL OMITTED

Lawrence F. Gepford, Gepford, Sears, Matula, Alena & Riederer, Kansas City, Mo., for plaintiffs.

Dan G. Jackson, III, Asst. City Atty., Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

Plaintiffs allege "reverse discrimination" in seeking an Order of this Court to enjoin defendants from making certain promotions within the Fire Department of Kansas City, Missouri, under the procedures established for implementing that department's affirmative action plan. Jurisdiction is established under the Civil Rights Act of 1870, 42 U.S.C. § 1981, and 28 U.S.C. § 1343.¹ No claim for monetary damages is presented in this case.

The named plaintiffs are employees of the Fire Department of Kansas City, Missouri, and Local 42, International Association of Fire Fighters, AFL-CIO (the Union). Plaintiffs Germann and Riley are President and Secretary, respectively, of Local 42, and all individual plaintiffs are members of the Union. Plaintiffs seek to represent a class consisting of all fire fighters employed by the City of Kansas City, Missouri. Defendant City of Kansas City is a constitutionally chartered municipal corporation of the State of Missouri, exercising sovereignty over its citizens pursuant to the provisions of Article VI, § 19 of the Constitution of Missouri. Other defendants are the City Manager of Kansas City, Missouri; the Director of the Fire Department; the Fire Chief; and the Director of Personnel of Kansas City, Missouri.

I. The Disputed Personnel Procedures

City employees are classified by Sections 113, 114 and 115 of the City Charter into the "unclassified" service and "classified" service. All members of the Fire Department are within the classified service with the exception of the Director of Fire. All plaintiffs herein are members of Division "A" of the classified service, which division includes all positions and employments for which it is practicable to determine the merit and fitness of applicants by examination.

The Charter provides that the City shall operate under a system popularly known as the "merit system." Under the provisions of the Charter, defendant Lewinsohn, Director of Personnel, is required to administer examinations to determine the relative fitness of applicants for city employment. After the appropriate tests, the applicants are placed in order of rank on eligibility lists; in determining the rankings, test score on the job-related achievement test counts 75% and seniority counts 25%.² No other factors are utilized to construct promotional lists within the Fire Department. Pursuant to Section 123 of the Charter, an eligibility list is current for not more than two years.

Provisions for filling vacancies from the eligible lists are found in §§ 119 and 121 of the Charter. Section 119, entitled "Appointments," provides:

When any position in the classified service is to be filled, the appointing authority shall notify the personnel director of that fact and the personnel director, after notice to the persons to be certified, shall certify to such authority the names and addresses of candidates on the eligible list for the class or grade to which such position belongs as follows:

(a) For position in division "A" . . five (5) names of persons having highest ratings on the eligible list, plus two additional names with next highest ratings for each similar position to be filled if more than one. . . .

The appointing authority shall appoint to such position one of the persons whose names are so certified except as otherwise provided in this charter. . . .

Section 121, entitled "Promotions," provides:

Whenever practicable, as determined by the head of the department in which a vacancy occurs, vacancies in the classified service shall be filled by promotion. Any advancement in rank shall constitute promotion. When any position in the classified service which may be filled by promotion is to be filled, the appointing authority shall notify the personnel director of that fact, and the personnel director shall certify to such authority the names and addresses of employees of the city who are candidates on the eligible list for the class or rank to which such position belongs, in the order of rating, which list shall be known as the promotional list. Any appointment from such list of a city employee whose name is not among the five (5) highest in rating on such promotional list, if any, shall be made by the appointing authority only after proper approval thereof, in writing, by the director of personnel. (Emphasis supplied.)³

On April 28, 1972, the City Council of Kansas City, Missouri, adopted Ordinance No. 41120, amending the Administrative Code of Kansas City, Missouri, adopting for the City the principle of affirmative action in equal opportunity employment, and authorizing the Director of Personnel and the Director of Human Relations jointly to promulgate rules and regulations relating to the administration and enforcement of the affirmative action program. Ordinance No. 42406 formally approved and adopted the affirmative action program promulgated by the Director of Personnel and the Director of Human Relations.⁴

Under the adopted affirmative action plan an annual review is conducted of each department's staff to identify areas of deficiency in the utilization of minorities and women with particular emphasis on supervisory, skilled, technical, professional and management positions.⁵ When vacancies occur within a department in positions which have been identified by the above procedure as underutilizing women or minorities, the department head's requisitions to the Personnel Department to fill those positions are marked "Affirmative Action" unless accompanied by a memorandum to the Personnel Director from the department head stating the reasons for the position being removed from the affirmative action effort. Upon receipt of a requisition marked "Affirmative Action," the Personnel Department will review any existing certification list for that position to determine whether or not there is a good representation of minorities and women on the existing list, taking into consideration the availability of minorities and women in the labor market relative to that particular position. If there is a good representation, the list will be forwarded to the appointing authority in the usual manner. If there is not a good representation of minorities and women on the existing list, the Personnel Department will begin immediately to conduct intensive recruiting of women and minorities and to administer appropriate tests. There never has been any judgment by any court or determination by any administrative agency, that these appointment and promotional practices and policies of Kansas City, Missouri, or those in particular of the Fire Department of Kansas City, Missouri, are in any way discriminatory or in violation of Title VII of the Civil Rights Act of 1964, as amended, or applicable federal executive orders.

II. The Disputed Promotions

In January of 1976, defendant Spink, Director of the Fire Department, purportedly acting under the above procedures, promoted two Fire Captains from the promotional certification list to the position of Battalion Chief; those two individuals, both members of minority groups, were ranked second and tenth on the certification list. Also promoted at that time, to the position of Fire Captain, were three Fire Apparatus Operators, all members of minority groups, who ranked 41st, 47th and 50th on the certification list for the position of Fire Captain. Plaintiffs filed this action immediately, seeking a temporary restraining order to prevent the five promotions. When the promotions subsequently were refused by each of the minority individuals to be promoted, plaintiffs did not pursue efforts to obtain a temporary restraining order, but filed an amended complaint and continued to assert their claims for injunctive relief against the making of promotions within the Fire Department on any basis other than the merit system as it had been employed prior to the imposition of affirmative action requirements.

On July 26, 1976, the Fire Department sent to the Personnel Department requisitions numbered 994, 995, 996 and 997, identifying four vacancies in the position of Battalion Chief and requesting a certification list from which to make the appointments. Requisitions numbered 994 and 995 were earmarked "Affirmative Action." On July 29, 1976, the Personnel Department furnished the Fire Department a certification list, listing all the Fire Captains eligible for promotion to Battalion Chief in rank order. On August 6, 1976, defendant Spink sought and received the approval of defendant Lewinsohn, Director of Personnel, for appointment of Captain Arnett Williams, Number Ten on the eligible and certification lists.⁶ On August 9, 1976, defendant Spink and Louis H. Hansen, Acting Fire Chief, appointed four Fire Captains to the rank of Battalion Chief, to be effective at 12:01 a.m. on August 16, 1976. Three of the Fire Captains appointed are members of minority groups.⁷ On the original certification list Captain Lloyd Raymond Willard ranked second, Captain Billie D. Booth ranked fifth, Captain James Shelton Hogan ranked eighth, and Captain Arnett Reginald Williams ranked tenth.⁸ The four Fire Captains were sworn in as Battalion Chiefs at 8:00 a.m. on August 13, 1976, and assumed their new rank and position August 16, 1976.⁹ The Court accepted this action as fully and finally submitted following an evidentiary hearing on March 30, 1977.

III. Standing

Of the twenty-three named plaintiffs, five individuals clearly have standing to maintain this action. The United States Supreme Court has established that in order to obtain standing, a...