U.S. v. City of Chicago

• Decision Date: 09 August 1988
• Docket Number: Nos. 87-1973,s. 87-1973
• Citation: 853 F.2d 572
• Parties: 47 Fair Empl.Prac.Cas. 859, 47 Empl. Prac. Dec. P 38,197 UNITED STATES of America, Plaintiff, Carolyn Burauer, Intervening Plaintiff-Appellant, and Barbara McNamara, Intervening Plaintiff, Cross-Appellee, v. CITY OF CHICAGO, et al., Defendants-Appellees, Cross-Appellants. & 87-2076.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 572

853 F.2d 572

47 Fair Empl.Prac.Cas. 859,

47 Empl. Prac. Dec. P 38,197

UNITED STATES of America, Plaintiff, Carolyn Burauer, Intervening Plaintiff-Appellant, and Barbara McNamara, Intervening Plaintiff, Cross-Appellee, v. CITY OF CHICAGO, et al., Defendants-Appellees, Cross-Appellants.

Nos. 87-1973 & 87-2076.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 12, 1988.

Decided Aug. 3, 1988.

As Amended Aug. 9, 1988.

Richard Gutman, Richard Gutman, P.C., Chicago, Ill., for intervening plaintiff-appellant.

Linda E. Fisher, Northwestern University School of Law, Chicago, Ill., for intervening plaintiff, cross-appellee.

Peggy A. Davis, Corp. Counsel, Chicago, Ill., for defendants-appellees, cross-appellants.

Before WOOD, Jr., EASTERBROOK and KANNE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

These appeals arose from a consolidated action, initiated in 1973, challenging the hiring and promotion practices within the Chicago Police Department. The City of Chicago was found to have discriminated on the basis of sex and race in hiring and promotion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17. The present appeals concern the individual petitions of two intervening plaintiffs for back pay.

I. FACTUAL BACKGROUND

At the time of the discriminatory acts, the Chicago Police Department had three distinct job positions: "patrolman," "policewoman," and "police matron." Only patrolmen did police patrol work. Women were not permitted to become patrolmen. Policewomen and police matrons were principally assigned to duties involving the processing and custody of female prisoners and certain duties in the Youth Division. All policewomen and police matrons were women.

On December 4, 1971, the City of Chicago gave an entrance examination for the position of patrolman. Intervening plaintiffs Carolyn Burauer and Barbara McNamara contend that they would have applied for the patrolman position in 1971 had the job been open to them. Women, however, were not allowed to take the examination.

Burauer and McNamara instead took the policewoman/police matron examination that was given on June 3, 1972. This test was only open to women. Of the 1,395 women who passed the test, McNamara ranked 322 and Burauer ranked 1,115.

Title VII became applicable to municipalities in March 1972. The City, however, continued to hire from the rosters of the 1971 and 1972 exams. Although the City hired approximately 1,400 police officers between March 1972 and May 1975, only ninety-eight of those hired were women. On November 7, 1974, the district court issued a preliminary injunction prohibiting the City from using the 1971 roster in hiring patrol officers. Nevertheless, the court indicated that the City could apply for permission to use the 1971 roster pending the development of a non-discriminatory entrance examination. 385 F.Supp. 543, 562 (N.D.Ill.1974). On February 2, 1976, the district court issued a permanent injunction ordering the City to hire women for positions in the Chicago Police Department "in accordance with the same standards and procedures and on an equal basis with men." 411 F.Supp. 218, 248-49 (N.D.Ill.1976). Although the City had given a unisex patrol officer examination in April 1975, its results were still not available when the district court entered its memorandum decision on January 5, 1976. The court, frustrated at the "delay in the new method of selecting patrol officers," id. at 224, ordered that the existing 1971 and 1972 rosters be used to fill the current and future patrol officer vacancies, with sixteen percent of the new hirees being female, until further order of the court. Id. at 241-42, 249. On September 7, 1976, the district court approved the roster compiled by the City from the results of the 1975 unisex patrol officer exam. 420 F.Supp. 733, 736 (N.D.Ill.1976).

McNamara was hired on March 8, 1976 from the 1972 roster. Burauer took the 1975 unisex patrol officer exam and was ultimately hired from the resulting roster on January 28, 1980. Both women filed petitions seeking back pay from April 3, 1972, the first hiring date after Title VII became applicable to municipalities, to the dates that they were actually hired.

On March 30, 1987, the district court, in an oral decision issued from the bench, denied relief to Burauer. The court, using the 1972 roster on which Burauer was ranked 1,115 and the actual hiring history of the Chicago Police Department during 1972-1974, determined that Burauer would not have been hired during that period even if the City had not discriminated. Thus, the court ruled that Burauer was not an actual victim of the City's discriminatory hiring practices and was therefore not entitled to back pay. In the same decision, the court awarded McNamara $36,666.24 in back pay from March 19, 1973, the date that McNamara would have been hired if the City had not discriminated, to March 8, 1976, the date she was actually hired. The court also awarded her retroactive seniority, attorney's fees, and $67,758.80 in prejudgment interest.

Both Burauer and the City filed motions for reconsideration, which the court denied. Burauer now appeals the district court's denial of her claim for benefits. In its cross-appeal, the City only challenges the inclusion of $5,260 in McNamara's total back pay award, and the portion of the prejudgment interest produced by the $5,260. The City contends that McNamara should have mitigated her damages to that extent. We have jurisdiction over both these appeals under 28 U.S.C. Sec. 1291.

II. DISCUSSION

In awarding damages in a Title VII case, a court must determine whether the claimant was an actual victim of the employer's discriminatory practices. International Bhd. of Teamsters v. United States, 431 U.S. 324, 371-72, 97 S.Ct. 1843, 1873, 52 L.Ed.2d 396 (1977). After identifying the actual victims, the court must do its best to recreate the conditions and relationships that would have existed if the unlawful discrimination had not occurred. Id. at 372, 97 S.Ct. at 1873; Franks v. Bowman Transp. Co., 424 U.S. 747, 769, 96 S.Ct. 1251, 1266, 47 L.Ed.2d 444 (1976). The Supreme Court has held that, "given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975) (footnote omitted). Thus, the Court has held that a finding that an employer engaged in employment discrimination in violation of Title VII triggers a rebuttable presumption that the claimant is entitled to an award of back pay and retroactive seniority. Teamsters, 431 U.S. at 359 & n. 45, 97 S.Ct. at 1867 & n. 45; Franks, 424 U.S. at 772, 96 S.Ct. at 1268. To defeat a Title VII plaintiff's claim for damages, the employer must prove that the plaintiff was not an actual victim of discrimination. Teamsters, 431 U.S. at 362, 369 n. 53, 97 S.Ct. at 1868, 1872 n. 53; Franks, 424 U.S. at 772-73, 96 S.Ct. at 1268; Caviale v. State of Wis., Dep't of Health & Social Servs., 744 F.2d 1289, 1296 (7th Cir.1984). The employer must provide clear and convincing evidence to meet its burden. Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986); Stewart v. General Motors Corp., 542 F.2d 445, 453 (7th Cir.1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977). As an affirmative defense, the employer may prove that the plaintiff failed to mitigate damages. Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1234 (7th Cir.1986); Hanna v. American Motors Corp., 724 F.2d 1300, 1307 (7th Cir.), cert. denied, 467 U.S. 1241, 104 S.Ct. 3512, 82 L.Ed.2d 821 (1984).

A. Burauer's Appeal

Burauer contends that the district court erred in using the 1972 policewoman roster to determine whether she would have been hired if the City had not discriminated. Burauer claims that the 1971 patrolman examination would be a more appropriate guide. In the alternative, Burauer argues that her results on the 1975 unisex exam are a better measure than her ranking on the 1972 policewoman roster.

The parties agree that the actual victims in this case are those women who, but for the City's discriminatory practices, would have taken the 1971 patrolman exam and been hired between March 1972, when Title VII became applicable to municipalities, and December 16, 1974, when the court approved an interim hiring agreement. The district court, adopting the City's approach, looked to the 1972 policewoman roster to determine those women who would have been most likely to have taken the 1971 patrolman exam if it had been open to women. The court then analyzed the actual hiring of women by the Chicago Police Department during the relevant period. During that period, ninety-eight women were hired from the 1972 roster, in rank order, for policewoman positions. The ninety-eighth woman hired was ranked 182 on the 1972 roster, indicating that roughly half the women on the roster were both qualified and willing to accept a police job when it was offered. Therefore, the court assumed that if more women had been hired during this period, they would have been hired from the 1972 roster in rank order and the rank order of the last woman hired would have been approximately double the total number of women hired. The court then determined that, absent discrimination, twenty-three percent of the patrolmen hired during the relevant period should have been female. Using this percentage, the court found that those women who ranked 634 or better on the 1972 roster were actual victims of discrimination. Because Burauer ranked 1,115, she would have been too far down on the list to have been hired between 19...