Minority Police Officers v. City of South Bend

• Decision Date: 05 September 1985
• Docket Number: S 83-523.,No. S 81-402,S 81-402
• Citation: 617 F. Supp. 1330
• Parties: MINORITY POLICE OFFICERS ASS'N OF SOUTH BEND; James Earl Clark, Jr.; John Williams; Shirley Woods; Lynn Coleman; Norval Williams; Hiram Bonds; Austin Davis; and Curtis Walton, Plaintiffs, v. CITY OF SOUTH BEND, INDIANA, a municipal corporation; Roger O. Parent, individually and as the Mayor, City of South Bend, Indiana; Board of Public Safety, South Bend, Indiana; Charles W. Roemer, individually and as the President of the Board of Public Safety, City of South Bend, Indiana; Elmer Carr, individually and as a member of the Board of Public Safety, South Bend, Indiana; Stanley Przybylski, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; and Dan D. Thompson, individually and as Chief of Police, City of South Bend, Indiana Police Department, Defendants. James Earl CLARK, Jr. and Lynn Coleman, Plaintiffs, v. CITY OF SOUTH BEND, INDIANA, a municipal corporation; Roger O. Parent, individually and as Mayor, City of South Bend, Indiana; Board of Public Safety, South Bend, Indiana; Elmer Carr, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; Stanley Przybylski, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; Gene Norris, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; and Dan D. Thompson, individually and as Chief of Police, City of South Bend, Indiana Police Department, Defendants.
• Court: U.S. District Court — Northern District of Indiana

617 F. Supp. 1330

MINORITY POLICE OFFICERS ASS'N OF SOUTH BEND; James Earl Clark, Jr.; John Williams; Shirley Woods; Lynn Coleman; Norval Williams; Hiram Bonds; Austin Davis; and Curtis Walton, Plaintiffs, v. CITY OF SOUTH BEND, INDIANA, a municipal corporation; Roger O. Parent, individually and as the Mayor, City of South Bend, Indiana; Board of Public Safety, South Bend, Indiana; Charles W. Roemer, individually and as the President of the Board of Public Safety, City of South Bend, Indiana; Elmer Carr, individually and as a member of the Board of Public Safety, South Bend, Indiana; Stanley Przybylski, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; and Dan D. Thompson, individually and as Chief of Police, City of South Bend, Indiana Police Department, Defendants.

James Earl CLARK, Jr. and Lynn Coleman, Plaintiffs, v. CITY OF SOUTH BEND, INDIANA, a municipal corporation; Roger O. Parent, individually and as Mayor, City of South Bend, Indiana; Board of Public Safety, South Bend, Indiana; Elmer Carr, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; Stanley Przybylski, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; Gene Norris, individually and as a member of the Board of Public Safety, City of South Bend, Indiana; and Dan D. Thompson, individually and as Chief of Police, City of South Bend, Indiana Police Department, Defendants.

Nos. S 81-402, S 83-523.

United States District Court, N.D. Indiana, South Bend Division.

September 5, 1985.

COPYRIGHT MATERIAL OMITTED

Charles F. Crutchfield and Patrick Brennan, South Bend, Ind., for plaintiffs.

Richard L. Hill, Robert C. Rosenfeld and Eugenia Schwartz, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

The plaintiffs in this case alleged that the defendants discriminated against them in their employment on the basis of race in violation of the Ninth Amendment and the Fourteenth Amendment to the Constitution of the United States, 42 U.S.C. ?? 1981 and 1983¹. Two of the named plaintiffs, James Earl Clark, Jr., and Lynn Coleman, have also alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ? 2000e et seq. The plaintiffs' claims alleged discrimination in recruitment, hiring, promotion, training, and other conditions of employment. By order of this court dated January 31, 1983, plaintiffs' claims based on hiring and recruitment were dismissed and all of plaintiffs' claims under the Ninth Amendment to Constitution of the United States were dismissed. Minority Police Officer Association v. City of South Bend, 555 F.Supp. 921 (N.D.Ind.1983), aff'd in part, 721 F.2d 197 (7th Cir.1983).²

This case was tried by the court without a jury on June 3, 4, 5 and 6, 1985. At the close of plaintiffs' evidence, all claims of Amando Garcia, John Floyd and Frank Murphy were dismissed³ and all of plaintiffs' claims under 42 U.S.C. ? 1983 were dismissed. At the conclusion of the trial, plaintiffs were given until June 15, 1985 to file any further objections to defendants' exhibits.

Both parties filed briefs on the evidence and law in this case. All counsel were afforded an opportunity for extensive oral argument on July 18, 1985. No counsel engaged in such extensive oral argument but asked this court to rely on their written presentations. This court has done so and such has required an inordinate amount of judicial time to engage in a massive dissection of this record. This memorandum and order contains the findings of fact and conclusions of law thereon pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. Preliminary Matters

A. Statute of Limitations

The plaintiffs continue to maintain that the two year statute of limitations set forth in I.C. 34-1-2-1.5 should not apply because past discriminatory acts may be relevant to show intent as to present discrimination. Defendants raised the statute of limitations defense in their earlier motion for summary judgment and the court ruled that a two year statute of limitations would apply to plaintiffs' claims under 42 U.S.C. ?? 1981 and 1983. Minority Police Officers Ass'n of South Bend v. City of South Bend, Indiana, 555 F.Supp. 921 (N.D.Ind.1983). The court specifically held that any claims for alleged discrimination occurring prior to November 23, 1979 would not be considered. Id. at 926. Neither party has provided the court with any authority in support of a different limitations period nor has the court found any such authority. Accordingly, although earlier actions of the defendants are admissible, any such actions may not form a basis for relief in this case.

B. Admissions of Exhibits

At trial, plaintiffs objected to defendants' exhibits G, H, I, J, K, L, M, O, P and R. Those exhibits were admitted conditionally. On June 13, 1985, the plaintiffs filed written objections with respect to those exhibits alleging that those exhibits were inadmissible on three grounds: (1) the charts did not accurately reflect the information taken from the underlying documents because the records of Minority Sworn Personnel for the years 1979 and 1981 were missing from documents supplied to plaintiffs by defendants; (2) inconsistencies in underlying documents regarding ethnic category of Tim Corbett and Richard Badics; and (3) plaintiffs should be permitted to cross-examine the proponent of the exhibits who prepared them to determine what impact, if any, the inconsistencies had on the minority percentages depicted on the charts. In response to plaintiffs' written objections, the defendants, by sworn affidavit of Ronald G. Mareiniak, Chief of the Services Division of the South Bend Police Department, indicated that the Minority Sworn Personnel records for 1979 and 1981 have been provided to plaintiffs. In his affidavit, Chief Marciniak stated that the exhibits in question were complete, accurate and authentic and based on the underlying documents. He further stated that in compiling the information contained in exhibits G, H, I and R, Tim Corbett and Richard Badics were included in the non-minority group in every calculation and compilation. Chief Marciniak testified at trial, on cross-examination and direct examination with respect to the documents in question. In further support of their argument that the questioned exhibits should be admitted, the defendants maintain that cross referencing defendants' exhibits F and S, which were admitted without objection, reflects the accuracy of defendants' exhibits H, I, J, K, L, M, O, P and R and that only the information contained in Exhibit G cannot be deduced from other exhibits. A close look at the exhibits, however, reveals that no such comparison can be made. Exhibit H contains information on the racial composition of the total sworn work force on November 1, 1979. Exhibits F and S are the roster of police officers in 1982 and 1985.⁴ Although they reflect the hiring dates of the officers listed thereon, it does not reflect who may have been on the force in 1979 but retired or resigned in the intervening years. Accordingly, the accuracy cannot be verified. Exhibit I contains information regarding the racial composition of the work force on November 1, 1981. This information cannot be verified for the same reasons Exhibit I could not be verified. Further, this exhibit indicates there were 228 sworn officers at the South Bend Police Department on November 1, 1981. Exhibit S is the roster of officers on the South Bend Police Department in 1982 and reflects 225 officers. Exhibit A to the pretrial order in this case, which was stipulated to by the parties as identifying the police officers on the South Bend Police Department as of November 23, 1981 appears to be the same list and reflects that there were 225 sworn officers of which 20 were black.⁵ Thus, three officers would have had to have left the South Bend Police Department between November 1, 1981 and November 23, 1981, of which one would have to have been black. Since information contained in Exhibit S does not reflect the information regarding when officers ceased to be on the force, Exhibit I cannot be verified. Exhibits J, K, O and P cannot be verified because there was no evidence presented on what criteria eligibility for promotion was based. Further, because this court was unable to determine who was eligible for promotion in the above described exhibits, this court cannot verify the percentage information contained in Exhibits L and M. Defendants' Exhibit R contains information reflecting the racial composition of the South Bend Police Department as of May 1, 1985 and reflects a total sworn work force of 228 with 32 minorities. Exhibit E reflects 229 officers on the roster with 32 minorities. Accordingly, the statistics contained on Exhibit R are incorrect. Accordingly, the plaintiffs' objections to defendants' exhibits G, H, I, J, K, L, M, O, P and R are sustained. Cf. Coates v. Johnson & Johnson, 756 F.2d 524, 549-50 (7th Cir.1985).

C. 1984 South Bend Police Department Promotion Plan

On May 24, 1985, the plaintiffs filed a Motion for Temporary Restraining Order seeking an injunction prohibiting defendants from implementing a document entitled "South Bend Police Department Promotion Plan" (1984 Promotion Plan). At the commencement of the trial, plaintiffs' motion was consolidated with the trial on the merits of this case.

In their motion, plaintiffs alleged that the Board of Public Safety of South Bend, Indiana approved the 1984 Promotion Plan in October 1984 and that the plan was offered as a "good faith" effort to correct the discriminatory policies and practices concerning promotion at the South Bend Police Department. The plaintiffs further alleged that the 1984 Promotion Plan would not correct the existing inequities as to promotion but would make promotion more difficult for the plaintiffs by adding a written examination to the promotion...