McNamara v. City of Chicago

• Decision Date: 21 April 1998
• Docket Number: Nos. 97-1783,97-1784,s. 97-1783
• Citation: 138 F.3d 1219
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 668, 73 Empl. Prac. Dec. P 45,211 James A. McNAMARA, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1219

138 F.3d 1219

76 Fair Empl.Prac.Cas. (BNA) 668,

73 Empl. Prac. Dec. P 45,211

James A. McNAMARA, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.

Nos. 97-1783, 97-1784.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 15, 1998.

Decided March 18, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied April 21, 1998. ^*

Kimberly A. Sutherland (argued), Chicago, IL, for Plaintiffs-Appellants.

Sarah Vanderwicken, Despres, Schwartz & Geoghegan, Chicago, IL, J. Paula Roderick, Neal & Associates, Chicago, IL, Lawrence Rosenthal (argued), Jay M. Kertez, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

Nine white officers of the Chicago Fire Department brought this suit in 1993 against the City and City officials, charging racial discrimination in promotions. After a bench trial, the district judge gave judgment for the defendants and dismissed the suit. All of the plaintiff officers were lieutenants in 1987 and took the exam given that year for promotion to captain. Three of them had done well on the exam only to be passed over in favor of black and Hispanic lieutenants who received lower scores. These three white officers were, however, promoted to captain a year later. The other six plaintiffs did not do as well on the exam and were denied promotion outright, rather than merely being delayed for a year.

We had a pair of similar cases several years ago (though with different plaintiffs), involving a challenge to affirmative action in promotions in the Chicago Fire Department, including promotions to captain. Billish v. City of Chicago, 989 F.2d 890 (7th Cir.1993) (en banc). Those cases had been decided--prematurely, we ruled--on summary judgment; now we have a decision to review that was based on a full trial. But before getting to the merits, we address two jurisdictional issues.

The first, which actually is frivolous though urged by the appellants as their first ground of appeal, is whether the district judge had jurisdiction, after the appeal was filed, to replace "Chicago Police Department" with "Chicago Fire Department" in one sentence of the opinion. As this was the correction of a clerical error, it could be made by the district judge "at any time," Fed.R.Civ.P. 60(a), even after jurisdiction over the case shifted to this court by virtue of the filing of the notice of appeal. Local 1545 v. Inland Steel Coal Co., 876 F.2d 1288, 1292 n. 4 (7th Cir.1989); Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir.1997). Even if this were wrong, and the error could not be corrected while the case was on appeal, the existence of a trivial error, obviously merely typographical, in the district court's opinion would not be a ground for reversing the judgment.

The second jurisdictional issue is substantial, but also not dispositive of the appeal. It concerns the standing of the six plaintiffs who were denied promotion outright. They ranked between 152 and 166 in the scoring of the 1987 exam for captains. Had the City promoted in strict rank order, without any favoritism for members of minority groups, it would have promoted 143 of the examinees and reached number 146 (because three of the top 146 scorers waived promotion); no one ranking below 146 on the exam would have been promoted. It is true that the actual number of promotions made was not 143, but 161, and that the last promotion would have been 166 (because there were two more waivers) had promotions been made in strict rank order. But the additional 18 promotions (161--143) were made pursuant to the same affirmative action plan that was responsible for the favored treatment of which the plaintiffs are complaining. Had there been no favoritism, the six low-ranking plaintiffs would not have been promoted, because promotions would have stopped at 146 and the highest-ranking of these plaintiffs was as we said number 152.

A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976); Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, 9 F.3d 1290 (7th Cir.1993). That appears to be (but, as we are about to see, may not be) the situation of these six plaintiffs. The remaining plaintiffs clearly were hurt by the affirmative action plan, because they ranked in the top 146 but were passed over to make room for minority lieutenants. The harm was temporary, because they were promoted to captain a year later, and therefore limited; but obviously not so limited as to deprive them of standing.

But just as a person may recover damages for emotional distress caused by his having been denied due process of law, even though if he had received due process he would still have lost the case in which the procedural violation occurred, Carey v. Piphus, 435 U.S. 247, 263-64, 98 S.Ct. 1042, 1052-53, 55 L.Ed.2d 252 (1978), so it can be argued that a person denied a benefit on an invidious ground may obtain damages for emotional distress caused by that denial even if he would have been denied the benefit anyway. And Price v. City of Charlotte, 93 F.3d 1241, 1245-48 (4th Cir.1996), so holds. Neither the Supreme Court nor this court has had occasion to examine the question. The objection to the answer given by Price is that it enormously multiplies the number of potential plaintiffs in equal protection cases; persons who had not been harmed in the usual sense could nonetheless sue for damages resulting from the insult implicit in any denial to a person of the equal protection of the laws. But this is not the case in which to try to wrestle the issue to the ground. Since three of the plaintiffs have standing, the merits issue cannot be avoided, and in these circumstances we may elide the jurisdictional issue. Steel Co. v. Citizens for a Better Environment, --- U.S. ----, ----, 118 S.Ct. 1003, 1013, 140 L.Ed.2d 210 (1998). And we may do so for the additional reason that, given the claim of damages for emotional distress, the jurisdictional issue is not whether the plaintiffs have been harmed (Article III) but whether they should be allowed to sue for that harm (zone of interests). The latter type of jurisdictional issue ("prudential standing" as it is sometimes called) may be bypassed in favor of deciding the merits when the outcome is unaffected and the merits issue easier than the jurisdictional issue. Id.

So let us turn to the merits. The parties agree that minority lieutenants received favorable treatment on account of their race (in the case of the blacks) and their ethnicity (in the case of the Hispanics) and that such treatment is a denial of equal protection unless it can be justified under the demanding standard that goes by the name "strict scrutiny." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236-37, 115 S.Ct. 2097, 2117-18, 132 L.Ed.2d 158 (1995). They further agree, as they also must under the cases, that one justification that passes muster under this demanding standard is that the favored treatment is necessary to remedy unlawful discrimination in the past by the entity conferring the favor. E.g., People Who Care v. Rockford Board of Education, 111 F.3d 528, 535 (7th Cir.1997). Whether other justifications are possible is unsettled, United States v. Paradise, 480 U.S. 149, 167 n. 18, 107 S.Ct. 1053, 1064 n. 18, 94 L.Ed.2d 203 (1987); compare City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 721-22, 102 L.Ed.2d 854 (1989) (plurality opinion); Taxman v. Board of Education, 91 F.3d 1547, 1557 (3d Cir.1996); and Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir.1996), with Regents of the University of California v. Bakke, 438 U.S. 265, 311-14, 98 S.Ct. 2733, 2759-61, 57 L.Ed.2d 750 (1978) (opinion of Justice Powell), but this court has held that at least in the area of policing and corrections it is possible to justify nonremedial affirmative action upon a showing--which must however be based on evidence rather than merely on conjecture--that such action is necessary to the accomplishment of important law-enforcement objectives. Wittmer v. Peters, 87 F.3d 916 (7th Cir.1996).

At argument there was some discussion of whether a similar justification might be available in the case of firefighters, who may lack credibility, and be denied cooperation, in minority neighborhoods if the firehouses in those neighborhoods have only white personnel. Cf. Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir.1996); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 213 (4th Cir.1993). But as the City presented very little evidence of this at trial, it is not available to support the judgment on appeal. Racial discrimination cannot survive challenge without compelling evidence; even highly plausible speculation will not do. Id. at 214; Wittmer v. Peters, supra, 87 F.3d at 918-19.

So the only available justification is the remedial one, and it requires proof both that the City engaged in racial and ethnic discrimination in the employment of firefighters in the past and that the remedy is narrowly tailored to the violation, which means, as a practical matter, that it discriminates against whites as little as possible consistent with effective remediation. Shaw v. Hunt, 517 U.S. 899, 907-11, 116 S.Ct. 1894, 1902-03, 135 L.Ed.2d 207 (1996); Billish v. City of Chicago, supra, 989 F.2d at 893; Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d 586, 596 (3d Cir.1996); Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir.1994). To assess the...