U.S. v. Town of Cicero, Ill.

• Decision Date: 20 March 1986
• Docket Number: No. 85-2513,85-2513
• Citation: 786 F.2d 331
• Parties: 40 Fair Empl.Prac.Cas. 537, 39 Empl. Prac. Dec. P 36,037, 54 USLW 2511 UNITED STATES of America, Plaintiff-Appellant, v. TOWN OF CICERO, ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 331

786 F.2d 331

40 Fair Empl.Prac.Cas. 537,

39 Empl. Prac. Dec. P 36,037, 54 USLW 2511

UNITED STATES of America, Plaintiff-Appellant, v. TOWN OF CICERO, ILLINOIS, Defendant-Appellee.

No. 85-2513.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1986.

Decided March 20, 1986.

William Yeoman, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Alan Rosen, Neistein, Richman, Hauslinger & Young, Chicago, Ill., for defendant-appellee.

Before BAUER and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

BAUER, Circuit Judge.

The United States brought this Title VII action against the Town of Cicero challenging certain Cicero ordinances on the grounds that these ordinances discriminate against blacks. The ordinances prohibit anyone who has not lived in Cicero for a minimum number of years from applying for a municipal job. The United States sought a preliminary injunction to enjoin enforcement of the ordinances and the district court denied the motion. The case is now before us on an interlocutory appeal of the district court's denial of the government's motion. We vacate the district court's ruling because of its failure to properly apply the holding in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and remand.

I.

The United States filed this action on January 21, 1983, alleging, among other claims, that three ordinances enacted by the Town of Cicero, Illinois violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. Two of the ordinances require applicants for jobs as policemen and firemen to have been residents of Cicero for at least three years in order to be eligible for the job. The third ordinance requires applicants for all other municipal jobs to have been residents of Cicero for at least one year in order to be eligible for the job. On November 13, 1984 the United States moved for a preliminary injunction to enjoin enforcement of these three ordinances.

On July 3 and July 5, 1985 the district court heard testimony from both parties on the government's motion. The government presented statistical evidence to support its contention that the ordinances unfairly discriminated against blacks. Some of these statistics are as follows: that the labor force residing in Cicero was less than 0.05 percent black (14 blacks in a labor force of 29,228 workers), but that blacks comprise 20.7 percent of the work force of Cook County, where Cicero is located; that Cicero adjoins two predominantly black Chicago communities, North Lawndale (96.5 percent black) and Austin (73.8 percent black); that the thirty-eight private employers in Cicero who filed EEOC statements in 1983 employed a work force that was 18.7 percent black; that of Cicero's 374 full time municipal employees, none are black; and that in its entire history, Cicero has never hired a single black person.

At these hearings, Cicero offered four non-discriminatory reasons for enacting the ordinances. First, Cicero contended that applicants for municipal jobs who had previously lived in Cicero would know the town better and therefore provide better services and be able to respond to emergencies more quickly. Second, employees living in the town would spend money there and lighten the tax burden of other residents. Third, requiring prior residence in Cicero would give the employees a stake in the community. Finally, by residing in Cicero the employees, particularly the policemen and firemen, would raise the morale of the community by making other residents feel more protected. Cicero also presented two studies to support its contention that it did not discriminate against blacks.

At the conclusion of the hearings, the trial judge denied the government's motion from the bench. The trial judge stated that the ordinances are "facially neutral" and also neutral in their operation because they completely exclude every non-resident of Cicero from applying for a municipal job regardless of the non-resident's race. TR. 339. Because of this fact, the trial judge concluded that the ordinances do not violate Title VII. TR. 344-45.

II.

The government argues on appeal that the trial court did not apply the proper "disparate impact" analysis in evaluating its claim against Cicero. Cicero argues to the contrary, but both sides agree that the proper standard for evaluating disparate impact claims has been established by Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and its progeny. See, e.g., Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). These cases have established a three part test for analyzing disparate impact claims. First, the plaintiff must show that a facially neutral employment practice has a disproportionate impact on members of a particular race, sex or national origin. The defendant must then show that the employment practice is manifestly related to the job in question, Griggs, 401 U.S. at 432, 91 S.Ct. at 854, or significantly serves some important business purpose. See, e.g., New York Transit Authority v. Beazer, 440 U.S. 568, 587 n. 31, 99 S.Ct. 1355, 1566 n. 31, 59 L.Ed.2d 587 (1979). If the defendant cannot make this showing, the plaintiff prevails. Even if this showing is made, however, the plaintiff may present evidence to show that the proffered nondiscriminatory reasons are pretextual and thereby succeed in proving illegal discrimination. See, e.g., Connecticut v. Teal, 457 U.S. at 447, 102 S.Ct. at 2530-31.

The government argues that the trial judge considered only the facial neutrality of the ordinances in denying its motion. Cicero argues that the trial judge properly applied Griggs. Cicero concludes that because the trial judge first heard evidence from the government, denied Cicero's "motion for a directed verdict" after this evidence was presented, heard Cicero's evidence, and then gave the government an opportunity to rebut that evidence, the trial judge followed the exact procedure described in Griggs. It may be that the trial judge followed the format outlined in Griggs, but it is the trial judge's treatment of the evidence before the court with which we find fault. The trial judge's discussion of the evidence provides support for both parties' positions on the ultimate issues of the case and we are not certain that all of the court's statements can be reconciled. What is clear, however, is that the trial judge based his ruling on his finding that the ordinances are facially neutral in that they apply to any person who does not live in Cicero regardless of race. TR. 344-45. For this reason, the trial judge's ruling was incorrect.

In Griggs, the Supreme Court held that under Title VII, "practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminating employment practices." Griggs, 401 U.S. at 430, 91 S.Ct. at 853. The underlying purpose of allowing disparate impact claims is to address the consequences of employment practices regardless of whether they are facially neutral. Id. at 432, 91 S.Ct. at 854. The trial judge therefore erred by basing his decision to deny the injunction on the facial neutrality of the ordinances. Accordingly, we vacate his ruling.

Both parties have argued the evidence extensively on appeal in support of their positions and the government urges us to remand with instructions to the district court to grant its motion for a preliminary injunction. We will not address any of these arguments, however, because given the limited scope of the district court's ruling we do not wish to, in effect, try this case on appeal, and we therefore remand to the district court with instructions to consider the government's motion in accordance with the Supreme Court's holding in Griggs. We recognize that this may result in more delay than ruling on the merits of the motion ourselves and are mindful of the government's representations at oral argument that it desires as speedy a resolution of this case as possible to prevent further discrimination against persons who wish to apply for a job with the Town of Cicero. This desire for a speedy resolution, the government asserts, was its reason for moving for a preliminary injunction in the first place. It seems incongruous to us, however, that in view of this desire the government would bring this interlocutory appeal, which necessarily takes a good deal of time and entails the risk of a further appeal by the Town of Cicero if the government is successful on remand, rather than proceed directly to trial. We can only hope that further interlocutory appeals do not delay the ultimate resolution at trial of what the government considers to be an important case.

For the reasons stated above, the district court's denial of the government's motion for a preliminary injunction is VACATED and the case is REMANDED for proceedings consistent with the Supreme Court's decision in Griggs v. Duke Power Co.

POSNER, Circuit Judge, concurring and dissenting.

The denial of the government's motion for a preliminary injunction against the enforcement of these ordinances must be reversed for the reasons given by the majority, but since I think the government is entitled to the injunction I would remand with directions to issue it. The record compiled in the preliminary injunction hearing makes the strongest case for violation of Title VII on a "disparate impact" theory that I have seen in my four years of judging.

The majority's refusal to order the entry of the preliminary injunction rests on three propositions. The first is that we cannot order it without the benefit of the district court's views on a critical issue: whether the government is in fact likely to prevail on its disparate impact theory (an issue the district judge did not reach, because he did not understand the theory). Courts of appeals (including this...