Janowiak v. Corporate City of South Bend, 84-1321

Citation750 F.2d 557
Decision Date06 December 1984
Docket NumberNo. 84-1321,84-1321
Parties36 Fair Empl.Prac.Cas. 737, 35 Empl. Prac. Dec. P 34,806, 53 USLW 2311 Timothy JANOWIAK, Plaintiff-Appellant, v. The CORPORATE CITY OF SOUTH BEND, Board of Public Safety, South Bend Fire Department, Mayor Roger Parent, Timothy Brassell, Fire Chief, Robert Potvin, and Stanley M. Przyblinski, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Patrick T. McFadden, McFadden & McFadden, South Bend, Ind., for plaintiff-appellant.

Thomas L. Bodnar, South Bend, Ind., for defendants-appellees.

Before BAUER, Circuit Judge, PELL, Senior Circuit Judge, and DUPREE, Senior District Judge. *

PELL, Senior Circuit Judge.

This case presents the question whether the City of South Bend could adopt an affirmative action program for its Police and Fire Departments solely upon the basis of a finding that a disparity existed between the percentage of minorities in the population of South Bend and the percentage of minorities in the Departments. The district court, 576 F.Supp. 1461 (N.D.Ind.1983) granted summary judgment to defendants-appellees, the City of South Bend and various municipal agencies and officers, holding that the City's statistical comparison justified the implementation of an affirmative action program. On appeal, plaintiff-appellant challenges the court's grant of summary judgment upon the grounds that defendants violated Title VII and the Equal Protection Clause of the Fourteenth Amendment by adopting and implementing an affirmative action program without an adequate finding of past discrimination.

I. Facts

On June 20, 1979, at a meeting of the South Bend Board of Public Safety, the Board appointed a Task Force to design and implement a plan to improve the recruitment of minorities for the Police and Fire Departments. In particular, the Board noted that the percentage of minorities in the population of South Bend was 14.1% and the percentage of minorities in the Fire Department was approximately 5.3%. At this meeting, the Chairman of the Board, Franklin Morse, stated that he believed that the Board could not institute a preferential hiring system without a finding of past discrimination.

The Minority Recruitment Task Force submitted its report to the Board of Public Safety on January 29, 1980. In its report, the Task Force stressed the fact that although minorities requested 28% of the applications for positions in the Fire Department, only 9% of these applications were returned. By comparison, non-minorities returned their applications at a rate of 37%. Emphasizing that the Board's hiring standards were reasonable, the Task Force advocated the continued use of the standards. In fact, in a preliminary report to the Board of Public Safety, the Chairman of the Task Force stated that the Task Force did not find that the hiring procedures were discriminatory. The Task Force recommended, however, that the Board adopt a modified two-to-one preferential hiring plan to reflect, within five years, the minority composition of the City.

After reviewing the Board's application procedures for the Police and Fire Departments and the report of the Minority Recruitment Task Force, the Minority Recruitment Review Committee presented a written report and recommendation to the Board, which was adopted on June 3, 1980. In its report, the Review Committee also noted the disparity between the percentage of minorities in the Departments and the percentage of minorities in the City and declared, "minority representation on the Police and Fire Department should be consistent with the minority composition of the community." Again, the Review Committee reported that it had reviewed the standards for testing, determined that they were reasonable, and recommended that they be retained. Nonetheless, the Review Committee recommended that the Departments utilize two separate lists to rank those minority and non-minority applicants who achieved a certain base score on the hiring tests. From each list, a three-member panel would recommend to the Board the number of applicants to be hired. The Board of Public Safety adopted these recommendations and, in keeping with the affirmative action program, decided to hire four minority applicants and one non-minority applicant to the Fire Department. The Board appointed these individuals to the Department in November 1980. Although one minority hiree failed the Pension Board physical examination, the Board replaced him with the next applicant on the minority list in February 1981.

Plaintiff in this case, a white male, applied to the Fire Department in July 1980 and completed testing in October 1980. On November 3, 1980, he received a letter from the Board of Public Safety informing him that, among other things, he ranked second out of twenty-two applicants on the non-minority hiring list. At his deposition, plaintiff testified that he could not remember when he learned of the minority hirings, but that, in any event, Mr. Robert Potvin, Assistant to the Board of Public Safety, assured him on at least two occasions prior to February 1981 that the Board would hire him as a firefighter. Sometime in February 1981, Potvin told plaintiff that he would not be hired and denied ever telling plaintiff that he would be hired. Plaintiff filed a charge of race discrimination with the Equal Employment Opportunity Commission on July 7, 1981, and the Commission issued a right to sue letter on February 18, 1982.

The district court granted defendants' motion for summary judgment on December 29, 1983, and subsequently denied plaintiff's motion to set aside the order granting summary judgment on January 27, 1984. The district court determined that, although the statute of limitations barred plaintiff's EEOC charge because he failed to file it within 180 days of the Board's decision to hire the firefighters, the statute was equitably tolled by Potvin's assurances that plaintiff would be hired. Reaching the merits of defendants' arguments, the district court held that summary judgment should be granted because neither Title VII nor the Fourteenth Amendment prohibited the adoption of an affirmative action program designed to remedy the statistical disparity between the percentage of minorities in the population of the City and the percentage of minorities in the Fire Department.

II. Analysis

Summary judgment should be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). According to the Supreme Court, the party seeking summary judgment bears the burden of persuading the court that no issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). See Herman v. National Broadcasting Co., 744 F.2d 604, 607 (7th Cir.1984). In determining whether an issue of material fact exists, the court must construe the facts alleged in the light most favorable to the party opposing the motion for summary judgment. Id. See Trulson v. Trane Co., 738 F.2d 770, 771 (7th Cir.1984).

A. Statute of Limitations

Defendants contend that summary judgment is appropriate because the statute of limitations bars plaintiff's EEOC charge since he did not file it within 180 days after the alleged unlawful employment practice. 42 U.S.C. Sec. 2000e-5(e). The district court determined that plaintiff failed to comply with the statute of limitations because the date that triggered the statute was either October 28, 1980, when the Board made its hiring decision, or sometime in November 1980, when the actual hiring occurred. Plaintiff did not file his charge until July 7, 1981, well beyond the 180-day limit under the statute.

The district court decided correctly that the statute of limitations began to run when the Board hired four minority candidates and one non-minority candidate to the Fire Department. In Delaware State College v. Ricks, the Supreme Court held that the 180-day limit begins to run from " 'the time of the discriminatory acts, not ... the time at which the consequences of the acts bec[o]me most painful.' " 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (emphasis in original) (quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979). Plaintiff's claim that he did not learn of the hiring decision until sometime in the spring of 1981 does not affect the conclusion that plaintiff failed to satisfy the statute of limitations. Of course, the statute may be tolled if, due to circumstances beyond his control, a person does not learn of the facts supporting his charge within the statutory limitations period. Wolfolk v. Rivera, 729 F.2d 1114, 1117 (7th Cir.1984). To determine whether a person was prevented from discovering the necessary facts by circumstances beyond his control, the court must inquire "when 'facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff.' " Id. (quoting Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975)). See Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407, 410 (7th Cir.1984); Coleman v. Clark Oil & Refining Co., 568 F.Supp. 1035, 1038-39 (E.D.Wis.1983). Under this objective test, plaintiff should have learned of defendants' hiring actions at some point within the 180-day limit. Plaintiff concedes that prior to the completion of the testing process he received a copy of a memorandum entitled "Hiring Procedure" that set forth many of the details of the affirmative action program. The Board of Public Safety, in its November 3rd letter to plaintiff, referred to plaintiff's number two ranking as his position on the "non-minority hiring roster." Although d...

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