U.S. v. City of Northlake, Ill., No. 90-1822

• Decision Date: 28 October 1991
• Docket Number: No. 90-1822
• Citation: 942 F.2d 1164
• Parties: 56 Fair Empl.Prac.Cas. (BNA) 1374, 57 Empl. Prac. Dec. P 41,014, 60 USLW 2235 UNITED STATES of America, Plaintiff-Appellant, v. CITY OF NORTHLAKE, ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1164

942 F.2d 1164

56 Fair Empl.Prac.Cas. (BNA) 1374,

57 Empl. Prac. Dec. P 41,014, 60 USLW 2235

UNITED STATES of America, Plaintiff-Appellant, v. CITY OF NORTHLAKE, ILLINOIS, Defendant-Appellee.

No. 90-1822.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 17, 1991.

Decided Sept. 6, 1991.

Rehearing Denied Oct. 28, 1991.

Mark A. Flessner, Ira H. Raphaelson, Asst. U.S. Attys., Office of U.S. Atty., Criminal Div., Nancy K. Needles, AUSA Office of U.S. Atty., Civ. Div., Appellate Section, Chicago, Ill., John R. Dunne, David K. Flynn, Miriam R. Eisenstein (argued), Asst. Attys. Gen., Dept. of Justice, Civ. Rights Div., Appellate Section, Washington, D.C., for plaintiff-appellant.

Samuel V.P. Banks, Edward B. Miller (argued), Robert J. Weber, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, WOOD, Jr. and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

In the 1980s, the Civil Rights Division of the Department of Justice filed fourteen lawsuits on behalf of the United States against small Chicago-area communities. The suits challenged a pervasive system of discrimination that left the city payrolls in those cities virtually bereft of any minority employees. Among other things, the United States challenged the requirement that city workers, such as police officers, live within the municipal boundaries of the community for one year prior to notification that the job-entrance examination would be offered. One of these cities was Northlake ("City"), a small Illinois municipality sued by the United States in December 1985 for discriminating against blacks in the recruitment and hiring of municipal employees. The complaint alleged that Northlake failed and refused to recruit or hire blacks on the same basis as whites, and failed and refused to adopt objective, non-discriminatory hiring procedures. Moreover, the complaint specifically challenged Northlake's durational residency requirement, asserting that it was enacted with a racially discriminatory purpose and had an illegal disproportionate impact on blacks. The suit resulted in the entry of a consent decree in March 1987.

In 1990, after the United States had been in repeated contact with the City over its failure to implement the requirements of the consent decree properly, Judge Prentice Marshall denied both the government's motion for further discovery and for a contempt hearing and its subsequent motion to reconsider, concluding that the practices complained of fell outside the scope of the consent decree. He also stated that the evidence presented by the government was inadequate to support a theory of discrimination against racial and ethnic minorities due to the disparate impact of the hiring practices. Because the plain language of the consent decree was undeniably broad and because the district judge seemingly misapprehended the legal theory underlying the government's claim, we reverse and remand in order that the United States may have an opportunity to conduct discovery and present its case for contempt at a hearing.

I. FACTS

At the time that the United States initiated its lawsuit, the City had no blacks among its sixty-three employees. As grounds for its legal action, the United States relied on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the non-discrimination provisions contained in the now-defunct Revenue Sharing Act of 1972, as amended, 31 U.S.C. § 6716.

Two years later, in March 1987, the United States and the City entered into a judicially approved consent decree. Although the decree did not contain an admission of liability on the part of the City, the agreement mandated a wide range of remedial steps to be taken to ensure that the City would not discriminate against municipal employees in the future. Among other things, the consent decree enjoined the City from engaging in:

any employment practice which unlawfully discriminates on the basis of race or color in the recruitment or hiring of employees or in other terms and conditions of employment.

Consent Decree of March 30, 1987, App. II at 13. Moreover, in its pledge to avoid any future racial discrimination in hiring, the City assented to the following corrective measures, as set forth in the consent decree:

a. abolishing the durational residency requirement, replacing it with a one year move-in requirement from the date of hire;

b. declining to prefer resident applicants over non-residents for municipal jobs;

c. posting legal notices of job vacancies in two newspapers that circulate outside of the City in communities with large minority populations;

d. abolishing the use of eligibility lists that were drawn up while the durational residency requirement was still in place.

App. II at 13-14. The consent decree sets forth in the remaining eight pages the precise steps to be taken by the City "to adopt and maintain a recruitment program directed at attracting to the City qualified black as well as other minority and white applicants seeking municipal employment opportunities." App. II at 15.

The entry of the consent decree did not yield any immediate results. As of May 1988, fourteen months after Judge Marshall signed the consent decree, the City had yet to attract a single black applicant for a city position, let alone hire any full-time black employees. Therefore, the United States reopened negotiations with the City in order to formulate a program whereby the City would be able to attract black applicants for its July 1988 recruitment efforts for the police department. During these talks, the Justice Department urged the City to publicize the availability of positions to the black community by advertising in the media and soliciting the help of organizations with ties to the black community such as the Urban League. The City ignored these urgings, choosing to advertise in a few regional newspapers and to add a $15 filing fee to police department applications with the goal of discouraging "less serious" applicants. It was not until August 1988, when the United States warned the City that it was not complying with the consent decree, that Northlake finally acted on the United States' recommendations.

By September 1988, the City managed to attract thirty-three additional applications for positions in the police department. Seven of these applicants were black. Following the two rounds of recruitment efforts by the City, a total of sixty-two individuals, including the seven blacks (11.2%), had applied for police positions.

Twelve candidates passed the written and physical agility portions of the police exam and sat for the oral evaluation. These applicants were interviewed by the Board of Fire and Police Commissioners. The four blacks among the final ten who passed the oral exam and were therefore recommended for police positions had proportionately higher scores than the six whites on the written and physical portions of the exam. However, the blacks received significantly lower oral scores, resulting in lower overall scores that put all four blacks in the bottom half of the list. A candidate's position on the list determined the order in which positions were to be filled. Ultimately, because of a shortage in police officers, all of the finalists remaining on the list were offered positions as police officers. One of the black candidates accepted a job.

The United States discovered that the Board members, in conducting the oral interviews, were provided with six interview questions prepared by an outside consultant. The Board members did not receive any other guidelines or criteria. According to Division D, § 2 of the Rules and Regulations governing the operations of the City of Northlake Board of Fire and Police Commissioners, the Board members were required to judge the applicants according to their appearance, voice and speech, alertness, ability to present ideas, judgment, emotional stability, self-confidence, friendliness, and "personal fitness for the position." Affidavit of Timothy Karaskiewicz, January 25, 1990, App. II at 60-61. There was no agreement among the interviewers as to what each of these terms meant. In fact, the Board's Chairman instructed the interviewers before the first interview to "grade the way you feel." App. II at 61.

The subjectivity of the interview process prompted the United States' claim that the City had violated the terms of the consent decree. On October 23, 1989, the plaintiff filed a motion with Judge Marshall for supplemental relief and an order permitting discovery. In its motion, the government alleged that by use of the subjective interview practices the City had intentionally discriminated on the basis of race in the process of selecting police officers, thereby violating the consent decree. In its request for an order permitting discovery, the United States asked to develop an evidentiary basis to support its allegations of purposeful discrimination.

Judge Marshall heard oral argument on the government's motion on January 10, 1990. He denied relief from the bench, concluding that the plaintiff could properly make its claims only by way of a new action. Acknowledging that the consent decree contained broad language, he emphasized that the suit against the City "started out as a residence case," App. I at 5, and that the government in its attempt to initiate a contempt proceeding has attempted to turn the suit into a "testing and selection case." App. I at 7.

Moreover, Judge Marshall did not believe that the government's motion contained evidence sufficient to warrant a hearing. In support of this determination, the district judge pointed to the fact that twenty-two percent of the original applicants were black, while the percentage of blacks among the final ten candidates rose to forty percent. As for the fact that the four black finalists were ranked in the bottom half of the list, he determined that this disparity did not rise to the level of contempt on the part...