United States v. City of Milwaukee, Civ. A. No. 74-C-480.

• Decision Date: 10 November 1977
• Docket Number: Civ. A. No. 74-C-480.
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF MILWAUKEE, a Municipal Corporation, Harold A. Breier, Chief of Police, City of Milwaukee Police Department, William Stamm, Chief, City of Milwaukee Fire Department, Marjorie L. Marshall, Charles W. Mentkowski, Richard Block, John Giacomo, and William I. Gore, Commissioners, City of Milwaukee Fire and Police Commission, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

439 F. Supp. 264

UNITED STATES of America, Plaintiff, v. CITY OF MILWAUKEE, a Municipal Corporation, Harold A. Breier, Chief of Police, City of Milwaukee Police Department, William Stamm, Chief, City of Milwaukee Fire Department, Marjorie L. Marshall, Charles W. Mentkowski, Richard Block, John Giacomo, and William I. Gore, Commissioners, City of Milwaukee Fire and Police Commission, Defendants.

Civ. A. No. 74-C-480.

United States District Court, E. D. Wisconsin.

November 10, 1977.

James S. Angus, Louis G. Ferrand, Jr., and Teresa M. Holland, Attys., U. S. Dept. of Justice, Washington, D. C., William J. Mulligan, U. S. Atty., Milwaukee, Wis., for plaintiff.

James B. Brennan, City Atty., and Maurice L. Markey, Asst. City Atty., Milwaukee, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This case is before the court on defendants' motion to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted on the ground that the plaintiff lacks standing to bring this action under Title 42 U.S.C. § 2000e-6. In essence, defendants contend that the United States Attorney General's formerly independent authority to bring pattern or practice suits under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., did not survive the 1972 amendment to § 2000e-6(c), effective March 24, 1972. This Court is of the opinion that the Attorney General's authority to bring pattern and practice suits against public sector employers did survive the 1972 amendment, and for the following reasons defendants' motion to dismiss will be denied.

On October 17, 1974, the United States instituted the present suit against the City of Milwaukee alleging discriminatory employment practices in the fire and Police Departments in violation of title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq.; the provisions of the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1221 et seq.; the provisions of the Omnibus Crime Control and Safe Streets Act of 1968, as amended in 42 U.S.C. § 3766(c); and rights guaranteed under the Fourteenth Amendment to the Constitution of the United States, pursuant to 42 U.S.C. §§ 1981 and 1983. It should be noted that the defendants' jurisdictional attack relates only to the question of the Attorney General's ability to bring pattern or practice suits pursuant to Title VII of the 1964 Civil Rights Act, as amended in 1972.

It is clear that the Attorney General has asserted two independent bases, not challenged by this motion, for his pattern and practice jurisdiction as to the defendants herein. See 31 U.S.C. § 1242(c) and 42 U.S.C. § 3766(c)(3). And the Court is convinced that the United States Attorney General has pattern and practice authority as to public sector employers under Title VII of the Civil Rights Act of 1964. Prior to the March 24, 1972, amendment, Title VII of the Civil Rights Act of 1964 applied only to the private sector, and the United States Attorney General was the only governmental officer authorized to initiate court action in the private sector. At that time, the Equal Employment Opportunity Commission ("EEOC") was limited to a role of attempting to achieve conciliation between the individual employee complainant and his private sector employer. If conciliation was not achieved, the Attorney General could initiate judicial action. At that time, the Attorney General also had pattern or practice authority against private sector employers under 42 U.S.C. § 2000e-6(a).

The scope of the act was broadened by the March 24, 1972, amendment and the definition of "person," for purposes of the subchapter, was expanded to include "governments, governmental agencies, and political subdivisions." 42 U.S.C. § 2000e (a). Under § 2000e-5, the EEOC became empowered to sue in district court on behalf of individual employee complainants in the private sector when conciliation efforts failed. The EEOC also gained responsibility for conciliation efforts on behalf of the individual public sector employee complainant, but the act specifically provided that if conciliation failed here against a governmental employer, the Attorney General would have exclusive authority to bring suit in federal court. 42 U.S.C. § 2000e-5(f)(1).

With regard to so-called "pattern and practice" suits, the confusion arises from 42 U.S.C. § 2000e-6(c) which was added by the March 24, 1972, amendment. First, it should be noted that § 2000e-6(a) pertains to the Attorney General's authority to bring a pattern or practice suit. The language of that section was not changed, but because of the above-mentioned expansion of the definition of "person" to include a "governmental agency, government or political subdivision," the Attorney General became authorized to pursue pattern or practice actions against public as well as private employers under § 2000e-6(a). The problem of statutory construction and legislative intent raised by the parties occurs at this juncture. In § 2000e-6(c), a section added on March 24, 1972, Congress provided that "Effective two years after March 24, 1972, the functions of the Attorney General under this section shall be transferred to the Commission * * *." In 42 U.S.C. § 2000e-6(d), another new section, Congress provided that "Upon the transfer of functions provided for in subsection (c) of this section, in all suits commenced pursuant to this section prior to the date of such transfer i. e., any pattern and practice suit which the Attorney General has filed prior to March 24, 1974, the date of transfer, proceedings shall continue * * *, all court orders and decrees shall remain in effect, and the Commission shall be substituted as a party for the United States of America, the Attorney General, or the Acting Attorney General, as appropriate."

In § 2000e-6(e), still another new section, Congress stated that after March 24, 1972, the EEOC would have authority to investigate and act on a charge of pattern or practice discrimination. The second sentence states that "All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title." From this, plaintiff argues that...