Reynolds v. City of Chicago

• Decision Date: 21 June 2002
• Docket Number: No. 00-3768.,No. 00-3771.,00-3771.,00-3768.
• Citation: 296 F.3d 524
• Parties: William R. REYNOLDS, et al., Plaintiffs-Appellants, and Harold Dennis, Plaintiff/Cross-Appellee, v. CITY OF CHICAGO, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

296 F.3d 524

William R. REYNOLDS, et al., Plaintiffs-Appellants, and Harold Dennis, Plaintiff/Cross-Appellee, v. CITY OF CHICAGO, Defendant-Appellee/Cross-Appellant.

No. 00-3771.

No. 00-3768.

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2002.

Decided June 21, 2002.

Stephen B. Horwitz (Argued), Sugarman & Horwitz, Chicago, IL, for Plaintiffs-Appellants, Plaintiff/Cross-Appellee in 00-3768 and 00-3771.

Lawrence Rosenthal (Argued), Myriam Zreczny, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellee/Cross-Appellant in 00-3768 and 00-3771.

Before POSNER, COFFEY, and DIANE P. WOOD, Circuit Judges.

POSNER, Circuit Judge.

This suit by white Chicago police sergeants and lieutenants challenges, as a denial of equal protection of the laws, the promotion in 1990 and 1991 of 20 black, Hispanic, and female sergeants and lieutenants to the rank of lieutenant and captain respectively. The challenged promotions were made pursuant to an affirmative action plan by which blacks, Hispanics, and women could be promoted "out of rank," that is, promoted even though they had a lower score than a white male on the test for the promotion. The district judge entered judgment after a jury trial and a partial retrial that he ordered, as he was authorized by Fed.R.Civ.P. 49(b) to do by an inconsistency between two of the answers that the jury gave to the special interrogatories that it had been told to answer. See, e.g., Turyna v. Martam Construction Co., 83 F.3d 178, 181 (7th Cir.1996); King v. Ford Motor Co., 209 F.3d 886, 895 (6th Cir.2000); Austin v. Paramount Parks, Inc., 195 F.3d 715, 725 (4th Cir.1999). The judgment was for the City with respect to all the promotions except that of the one Hispanic in the pool, who was promoted from sergeant to lieutenant. The plaintiffs appeal the ruling that the promotions of the blacks and women ahead of them did not deny the equal protection of the laws, while the City appeals the ruling that the promotion of the Hispanic sergeant ahead of the plaintiff sergeants was a denial of equal protection.

An initial question is the standard of review of jury findings in a racial-discrimination case. Although the plaintiffs' position is unclear, it appears to be that we should review the findings de novo, which would amount to making our own findings on the basis of the evidence. The plaintiffs derive this position from judicial statements that to justify racial discrimination the defendant must have "a strong basis in evidence" for it. E.g., Miller v. Johnson, 515 U.S. 900, 922, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995); Johnson v. Board of Regents, 263 F.3d 1234, 1244 (11th Cir.2001). The plaintiffs have wrenched this language out of context. Racial discrimination even of the "affirmative action" sort, when practiced by a public agency and thus subject to the equal protection clause, requires proof, and not merely argument, that the agency had a compelling need to discriminate and that it went no further in discrimination than necessary to meet that need. E.g., McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir.1998); Wittmer v. Peters, 87 F.3d 916, 918-19 (7th Cir.1996); Associated General Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 735 (6th Cir.2000). Argument in so sensitive an area of human relations must not, the courts believe, be allowed to draw on "common sense," which might be inflected by stereotypes. See Danskine v. Miami Dade Fire Dep't, 253 F.3d 1288, 1294-95 (11th Cir.2001); Contractors Ass'n of Eastern Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d 586, 597 (3d Cir.1996); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 214 (4th Cir.1993). But the requirement that there be proof and not merely conjecture to justify racial discrimination even of the relatively benign, non-stigmatizing sort, and the allocation of factfinding responsibilities between trial and appellate court, are two different things. The jury in a discrimination case has the same responsibility to resolve factual disputes that it has in any other case, subject to the same standard of review. Worth v. Tyer, 276 F.3d 249, 266 (7th Cir.2001); Susan Wakeen Doll Co. v. Ashton Drake Galleries, 272 F.3d 441, 451 (7th Cir.2001); All Care Nursing Service, Inc. v. High Tech Staffing Services, Inc., 135 F.3d 740, 749 (11th Cir.1998); Tamez v. City of San Marcos, 118 F.3d 1085, 1094 (5th Cir.1997); United States v. Tolliver, 116 F.3d 120, 125 (5th Cir.1997).

But what is that standard? The cases we just cited all use the clearly-erroneous standard to review jury findings, yet other cases say that in a federal civil case, by virtue of the Seventh Amendment, reviewing courts owe more deference to a jury's findings than to findings by a judge. See, e.g., District of Columbia v. Pace, 320 U.S. 698, 701, 64 S.Ct. 406, 88 L.Ed. 408 (1944); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1139 (7th Cir.1992); Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1235 (Fed.Cir.1989). The standard of appellate review applicable to judge and jury findings is at least verbally different: a judge's finding of fact can be set aside if clearly erroneous, Fed.R.Civ.P. 52(a), but, as explained in Artis, a jury's determination can be set aside only if "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party [the party opposing judgment as a matter of law]." Fed.R.Civ.P. 50(a). Yet the canonical formulation of the clearly-erroneous standard is that it requires for reversal that the reviewing court have "a definite and firm conviction that a mistake has been committed." Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); see also, e.g., United States v. Smith, 103 F.3d 600, 606 (7th Cir.1996). This is strong language; how different is its import from that of deciding that a jury's finding was unreasonable? And if there is a difference, is it one within the cognitive capacity of a reviewing court to discern? For we have remarked a number of times that there are limits to the fineness of the distinctions that judges are able to make. United States v. Hill, 196 F.3d 806, 808 (7th Cir.1999); United States v. Boyd, 55 F.3d 239, 242 (7th Cir.1995); Johnson v. Trigg, 28 F.3d 639, 643-44 (7th Cir.1994); Morales v. Yeutter, 952 F.2d 954, 957 (7th Cir.1991); Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir.1991); United States v. McKinney, 919 F.2d 405, 421-23 (7th Cir.1990) (concurring opinion). But this is a general issue of judicial epistemology, in no way special to cases involving racial discrimination; and, as we are about to see, it does not have to be resolved in this case.

Once the facts are found, the question becomes whether they demonstrate a forbidden racial preference. The fact of a preference, of discrimination, is just that—a fact. Pullman-Standard v. Swint, 456 U.S. 273, 287-90, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). The question whether it is an unlawful preference is a question about the application of the law to the fact. As with many other such questions in constitutional cases, it is to be decided as if it were a pure question of law, that is, with no deference given to the finder of fact, whether judge or jury. Grutter v. Bollinger, 288 F.3d 732, 738 (6th Cir.2002) (en banc); Hunter v. Regents of University of California, 190 F.3d 1061, 1063 (9th Cir.1999); Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir.1998); Engineering Contractors Ass'n of South Florida Inc. v. Metropolitan Dade County, 122 F.3d 895, 905 (11th Cir.1997).

The findings of fact made by the jury in this case are neither clearly erroneous nor unreasonable (assuming these are meaningfully, ascertainably distinct criteria), and what they reveal, so far as the black and female affirmative-action promotions are concerned, is the following. Until Orlando Wilson became the City of Chicago's police commissioner in 1960, black and white police officers were segregated, with black officers being confined to the parts of Chicago that were predominantly black. However, blacks were hired roughly in proportion to their share of the Chicago population. Wilson desegregated the police force. The City presented evidence that this resulted in a decline in the hiring of blacks. That may seem a paradoxical consequence of desegregation, but the evidence dispels the paradox. The evidence shows that white officers didn't want to serve with blacks. There were numerous acts of racial harassment of blacks, and black applicants flunked the police medical exam at rates suspiciously higher than whites. As a result of these circumstances, applications of blacks to the police force plummeted. After reforms in the mid-1970s that are acknowledged to have eliminated or at least greatly reduced racial discrimination in the Chicago police department, the rate of black applications climbed, and black applicants no longer flunked the medical exam at rates significantly higher than whites.

The evidence that we have briefly summarized justified a finding that discrimination by members of the police force depressed the hiring of blacks during the 1960s, leading in turn to a deficit of blacks in senior positions in the 1980s. The affirmative-action promotions of blacks challenged here, promotions designed to remedy the discrimination that we have just described, involved the promotion of 11 black sergeants out of a total of 182 promotions of sergeants and 3 black lieutenants out of a total of 50 promotions of lieutenants. These affirmative-action promotions resulted in percentages of black sergeants and lieutenants that still were lower than would have been expected had there not been that decline in the entry-level hiring of blacks in the 1960s.

The evidence that the decline was the result of discrimination was not conclusive. The plaintiffs...