N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n (DPOA)

Citation900 F.2d 903
Decision Date18 June 1990
Docket NumberNo. 88-1902,88-1902
Parties52 Fair Empl.Prac.Cas. 1001, 53 Empl. Prac. Dec. P 39,797 N.A.A.C.P., DETROIT BRANCH; The Guardians, Inc.; Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; Betty T. Rolland; Grant Battle; Cynthia Cheatom; Evin Fobbs; John H. Hawkins; Helen Poelnitz, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. DETROIT POLICE OFFICERS ASSOCIATION (DPOA); David Watroba, President; City of Detroit; Coleman A. Young, Mayor; Detroit Police Dept., Board of Police Commissioners; William Hart, Chief; William Milliken, Governor; The Michigan Employment Relations Commission, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Thomas I. Atkins (argued), Brooklyn, N.Y., for plaintiff-appellant.

Jeanne Mirer, Barnhart & Mirer, Detroit, Mich., for plaintiffs.

Frank Jackson, Terri L. Hayles, City of Detroit Law Dept., Detroit, Mich., Daniel B. Edelman (argued), Yablonski, Both & Edelman, Washington, D.C., Allan D. Sobel, Rubenstein, Isaacs, Lax & Bordman, Southfield, Mich., Walter Nussbaum (deceased) (argued), and Michael A. Lockman, Detroit, Mich., for defendants-appellees.

Before MERRITT, Chief Judge, and KENNEDY, Circuit Judge, and TODD, District Judge. *

MERRITT, Chief Judge.

In a previous appeal in this action, our Court published on June 12, 1987, an opinion, NAACP v. Detroit Police Officers Ass'n, 821 F.2d 328, 333 (6th Cir.1987), holding that a purely voluntary affirmative action plan instituted by Mayor Young and the City designed to increase minority representation in the Detroit Police Department could not override the last-hired, first-fired layoff provision of the Union's collective bargaining agreement with the City. 1 We held further that because the Union had not engaged in intentional discrimination, its failure to bargain forcefully against the layoffs made for budgetary reasons did not breach its duty of fair representation. The appeal in the previous case was from a ruling by the District Court that the voluntary plan alone by its own force required a finding of liability against the City and Mayor Young, and an injunctive order disallowing them from laying off 900 black police officers until the plan goals had been met. See NAACP v. Detroit Police Officers Ass'n, 591 F.Supp. 1194 (E.D.Mich.1984). We reversed the injunctive orders below and remanded the action for further proceedings.


On remand, after conducting proceedings on the motions of the parties for summary judgment, the District Court declared the issues moot and dismissed the case. The court did not reach the defendants' claim that the budgetary layoffs of the black officers were protected under Sec. 703(h) of Title VII because they were made pursuant to a bona fide seniority plan. 2 Plaintiffs have now appealed the mootness ruling. We reverse the District Court's decision that the case is moot but conclude that the defendants are protected from liability because the layoffs occurred pursuant to a bona fide seniority plan insulated under Sec. 703(h).

The District Court considered on remand the City's motion for entry of judgment on plaintiffs' Sec. 1983 claim, and the Union's motion for summary judgment on plaintiffs' Secs. 1983 and 1981 claims. The court first granted the Union's Sec. 1983 motion and denied the others, reasoning that the trial requested by plaintiffs was not precluded by this Court's determination in NAACP v. Detroit Police Officers Ass'n, 821 F.2d 328, that prior discrimination in the police department could not be established solely from our previous approval of a purely voluntary affirmative action plan. Without conducting a trial, the District Judge found that "[e]ven though [the District] Court does not ascribe racial animus to the Mayor and his administration," "race was a motivating factor in the City's action to layoff black officers." NAACP v. Detroit Police Officers Ass'n, 676 F.Supp. 790, 795 (E.D.Mich.1988) (citing NAACP v. Detroit Police Officers Ass'n, 591 F.Supp. at 1202). On the plaintiffs' claim against the Union, the District Judge first recognized that we concluded on the first appeal that he had found no intentional discrimination or other improper motivation in the Union's reaction to the threatened layoffs. But again, without conducting a trial, the District Judge, in denying the Union's motion for summary judgment, found that his findings in NAACP v. Detroit Police Officers Ass'n, 591 F.Supp. 1194, "were tantamount to a finding of intentional discrimination...." NAACP v. Detroit Police Officers Ass'n, 676 F.Supp. at 797.

After denying defendants' motions for summary judgment, the court ordered briefing on whether plaintiffs' claims had been mooted by events occurring after the injunctive orders had been issued.

Because all the officers laid off had been recalled with retroactive seniority, he concluded that plaintiffs' claims against the City were moot. This conclusion rested on the District Judge's observation that the Union membership had become predominantly black, a fact enabling black police officers to protect themselves through their voting power and the opportunity to enter Union leadership. It is this ruling that plaintiffs now appeal.

In dismissing the case, the District Judge said that even though this Court had invalidated his injunctive orders the action was moot because "[e]verything the [District] Court sought to accomplish in its original judgment ... [by the injunction] has been accomplished." NAACP v. Detroit Police Officers Ass'n, 685 F.Supp. 1004, 1007 (E.D.Mich.1988). Specifically, the District Court reasoned that by 1988 all of the officers laid off in 1979 and 1980 had been recalled with full seniority rights, thus leaving no case or controversy between plaintiffs and the City. In addition, since completing the recall in 1985, the City had hired 1,290 new officers. The court also held that since the majority of the membership at the DPOA was now comprised of blacks and other minorities, these minorities had acquired the ability to protect themselves through intra-union political action, thus rendering moot the plaintiffs' claim against the DPOA.

This ruling was erroneous. First, the fact that the District Court has accomplished the goals of its own injunctive order, later reversed as having no basis in law, does not render a case moot. Second, assuming for the moment that the plaintiffs had a viable Sec. 1983 claims against the City or the Union for the 1979-80 layoffs, the appropriate remedy would require more than mere recall and retroactive seniority. It would include the determination of other benefits such as backpay and out-of-pocket costs incurred by the laid-off police officers. Such an interest has been recognized as a "concrete interest in the outcome of the litigation." Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571, 104 S.Ct. 2576, 2584, 81 L.Ed.2d 483 (1984). Third, minority police officers' majority membership in the Union does not "without more" translate into the ability to protect themselves against discriminatory action by the leadership. Rather, their ability to protect themselves depends on factors such as the Union's organizational structure and could not be evaluated in the abstract without further inquiry. In light of these factors, including the Supreme Court's holding in Stotts, we conclude that the controversy was not moot.


Our inquiry may not end here, however. The defendants moved the District Court for dismissal of the case on alternative grounds. Because, as defendants contended in the court below, 3 the plaintiffs' case is based on a fundamentally erroneous legal theory, we conclude that the case must be dismissed.

In their original complaint, plaintiffs claimed that defendants engaged in discriminatory employment practices that violated the Thirteenth and Fourteenth Amendments to the Constitution, post-Civil War civil rights acts now codified at 42 U.S.C. Secs. 1981, 1983 and 1985(3), and Titles VI and VII 4 of the Civil Rights Act of 1964. On this appeal, plaintiffs have preserved only their claims under 42 U.S.C. Secs. 1981 and 1983. These claims are barred by Sec. 703(h) of Title VII.

Title VII is a remedial statute, designed "to assure equality of employment opportunities...." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). The Act was designed to bar not only overt employment discrimination, "but also practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). "Thus, the Court has repeatedly held that a prima facie Title VII violation may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group." International Bhd. of Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 1861-62, 52 L.Ed.2d 396 (1977).

The Act's treatment of seniority systems, however, establishes an exception to liability for employment discrimination based on race. From the Teamsters case on, the Supreme Court has recognized that were it not for Title VII's Sec. 703(h) exception, last-hired, first-fired seniority plans would be invalid under the Griggs rationale. Id.; see Lorance v. AT & T Technologies, Inc., --- U.S. ----, 109 S.Ct. 2261, 2265, 104 L.Ed.2d 961 (1989) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977)) ("[S]eniority systems ... are afforded special treatment under Title VII"); see also Hardison, 432 U.S. at 79, 97 S.Ct. at 2274 ("Collective bargaining ... lies at the core of our national labor policy, and seniority provisions are universally included in these contracts"). Special treatment for seniority systems strikes a...

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