Police Ass'n of New Orleans v. City of New Orleans
| Decision Date | 09 December 1996 |
| Docket Number | AND,DEFENDANT-APPELLANT,95-30637,DEFENDANT-APPELLAN,PLAINTIFFS-APPELLEES,Nos. 95-30541,s. 95-30541 |
| Citation | 100 F.3d 1159 |
| Parties | THE POLICE ASSOCIATION OF NEW ORLEANS, THROUGH ITS PRESIDENT, RONALD J. CANNATELLA; FORREST AUSTIN, JR.; ALBERT BOWMAN; KATHLEEN BROWN; RANDALL CHESTNUT; ROY GIBLIANT; ERIC HESSLER; IMBRAGUGLIO; BEDFORD JONES; JEROME LAVIOLETTE; CHARLES LITTLE; LUTHER LUMPKIN, III; WESLEY MORRIS; LARRY NETTLES; MICHAEL NUESSLY; LEO PETERS, JR.; ELMON RANDOLPH; STEVEN SMEGAL; ARTHUR SMOCK, III; KENNETH SOLIS; MICHAEL SPOSITO; BRETT THORNE; FRANK VACCARELLA; KEITH WEHMEIER; GERALD YOUNG,, v. CITY OF NEW ORLEANS, ETC., ET AL., DEFENDANTS, CITY OF NEW ORLEANS, A LOUISIANA MUNICIPALITY, LARRY WILLIAMS; GUSTAVE THOMAS; WILLIE CARTER, JR.; EDGAR MORGAN, JR.; RONAL BECHET, SR.; PATRICIA LEBEAUX; JEANNE MCGLORY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,, v. CITY OF NEW ORLEANS, A MUNICIPAL CORPORATION,MARC MORIAL, IN HIS CAPACITY AS MAYOR OF NEW ORLEANS; RICHARD PENNINGTON, AS SUPERINTENDENT OF POLICE OF NEW ORLEANS; NEW ORLEANS CIVIL SERVICE COMMISSION; SIDNEY H. CATES, IV, CHAIRMAN, NEW ORLEANS CIVIL SERVICE COMMISSION; GERRI M. ELIE, DOCTOR; WILLIAM R. FORRESTER, JR.; GLENDA JONES HARRIS; JOHN P. NELSON, COMMISSION MEMBERS, DEFENDANTS. Decided: |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank G DeSalvo, Edward K Newman, New Orleans, LA, Jeffery Mark Lynch, Guste, Barnett & Shushan, New Orleans, LA, for defendant-appellant in No. 95-30541.
Avis Marie Russell, Annabelle H Walker, Franz L Ziblich, New Orleans City Attorney's Office, New Orleans, LA., for defendant-appellant.
Charles Stephen Ralston, Elaine R Jones, NAACP Legal Defense & Education Fund, New York City, Ronald Lawrence Wilson, New Orleans, LA, for plaintiffs-appellees in No. 95-30637.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before Wisdom, Emilio M. Garza and Parker, Circuit Judges.
On May 27, 1987, the City of New Orleans agreed to a consent decree (the "Decree") with a class of African-American police officers (the "Williams Class") who contended that the promotion and hiring policies of the New Orleans Police Department (the "NOPD") were discriminatory. The Decree, which ended 14 years of protracted litigation, established a system to govern hiring and promotion within the NOPD.
In the first of these two consolidated cases, Police Association of New Orleans [PANO] v. City of New Orleans, the PANO and 24 police officers who are not African-American assert that on December 31, 1993 the City made certain transfers and promotions in violation of the Decree and state and federal constitutional law. The district court found for the plaintiffs. In the second case, Williams v. City of New Orleans, the City appeals the district court's refusal to modify the terms of the Decree. For the reasons discussed below, we affirm the district court in the PANO case. We reverse the judgment of the district court refusing to modify the Decree in the Williams case. We vacate the district court's order holding the City in contempt, and remand for the entry of an order consistent with this opinion.
The purpose of the Decree was to provide equal employment opportunity in the NOPD, to eliminate the effects of any past racial discrimination in the NOPD, and to improve citizen trust in and respect for the NOPD. The Decree altered the NOPD's promotion procedures in two meaningful ways.
First, the NOPD was required to establish and fund 30 sergeant, 12 lieutenant, and two captain positions that could be filled only by African-American officers. These positions, called "supernumeraries", represented a one-time affirmative action program. The Decree provides that vacant supernumerary positions may be filled only by African-American officers, subject to the condition that the NOPD may eliminate every fourth vacancy at its option. Aside from the requirement that only African-American officers fill the supernumerary positions, the terms and conditions of employment as a supernumerary are indistinguishable from those of regular officers of the same rank.
Second, the Decree created a "Band System" for promotions within the NOPD. Prior to the Decree, all officers seeking promotion who passed the New Orleans Civil Service Commission examination (the "examination") for that position were ranked in order of their scores and promoted in the order of their ranking. The Band System, by contrast, groups officers in bands according to their scores, so that all officers within a particular band are considered to have substantially equal ability.
The Decree requires the NOPD first to promote all officers within the lowest number band (comprised of officers having the highest test scores), then proceed to the higher number bands (comprised of officers with lower test scores). The Superintendent of Police must promote all officers in one band before proceeding to the next, but has discretion to select among the individuals within a particular band. The Decree mandated these changes in the promotion process to increase the opportunities for the advancement of African-American officers.
After the Decree was entered, a group of officers who are not African-American intervened to voice their objection to the creation of the supernumerary positions. The intervenors asserted that the Decree failed to insure that the ratio of regular sergeants, lieutenants, and captains to all officers in the NOPD would not fall below the ratio that existed on October 1, 1981. On that date, the proportion of ranked positions to all officers in the NOPD was as follows: 14.5 percent sergeants, 4.9 percent lieutenants, 1.8 percent captains. As a result, on May 27, 1987, the City and the Williams Class entered into a stipulation that addressed the intervenors' concerns. In the stipulation, the City agreed that the 1981 ratios would be maintained and that calculation of these ratios would not include the 44 supernumerary positions.
The most recent sergeant's promotional list was established in February 1991. By December 30, 1993 all officers in Bands 1, 2, 3, and 4 had been promoted. In Band 5 all African-American officers had been promoted and 34 non-African-American officers remained. Band 6 was comprised of both African-American and non-African-American officers. All 30 supernumerary sergeant positions were filled.
In November 1993, PANO informed the NOPD that it needed to create additional regular sergeant positions in order to comply with the stipulation. The City determined that the creation of 16 new regular sergeant positions would raise the ratio of regular sergeants to all officers above the 14.5 percent threshold requirement. Under the Decree, the new sergeants were to be selected from those officers remaining in Band 5. This action, however, would result in the promotion of non-African-American officers only. The City decided that, as a matter of policy, the promotions should better reflect the racial demographics of the city's population.1 To achieve this end, on December 31, 1993, the City transferred eight African-American supernumerary sergeants to eight of the newly created regular sergeant positions. The City then exercised its option to eliminate every fourth vacant supernumerary position as provided by the Decree. This left six vacant supernumerary positions. Because those positions could be filled by African-American officers only, the City passed over the 34 officers in Band 5 who were not African-American and promoted six African-American officers from Band 6. The City then filled the remaining ten newly created regular sergeant positions with ten of the non-African-American officers from Band 5, leaving 24 unpromoted. The net result of this scheme was 16 new sergeants: ten non-African-American officers from Band 5, and six African-American officers from Band 6.
On January 7, 1994, PANO and the 24 officers who were not African-American and were awaiting promotion to the rank of sergeant filed this action. Each of the individual officers had passed the sergeant examination and was placed in Band 5 of the Commission's promotional register. The plaintiffs asserted that, through the transfers and promotions of December 31, 1993, the City, the Superintendent of Police, and the Director of the Civil Service Commission violated the equal protection and due process clauses of the fourteenth amendment to the United States Constitution and Article I, Section 3 of the Louisiana Constitution of 1974. The plaintiffs asserted causes of action under 42 U.S.C. 1981 and 42 U.S.C. 1983. The plaintiffs sought declaratory and injunctive relief, compensatory and punitive damages, and attorney's fees and costs.
Two of the 24 officers who were not African-American remaining in Band 5 contended that they were denied promotions because they maintained their "residence" as opposed to their "domicile" in Orleans Parish.2 These officers asserted that Municipal Ordinance 15420, which required all city employees to be domiciled in Orleans Parish in order to be eligible for promotion, violated an express provision of the Decree. Paragraph X of the Decree provides:
In accordance with present law, no applicant for Police Recruit shall be hired by the NOPD unless he or she is a resident of the Parish of Orleans. In order to be eligible for promotion to the ranks of Police Sergeant, Police Lieutenant, Police Captain or Police Major, an officer shall establish that his or her residence is in the Parish of Orleans, unless he or she can show that this requirement was waived as to him or her and that such waiver is still in effect.
The parties agreed that this case did not involve any disputed issues of fact, but rather turned solely upon interpretation of federal constitutional and statutory law and the Decree. All parties agreed that the district court should resolve the...
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