US v. City of Buffalo

• Decision Date: 05 September 1989
• Docket Number: CIV-74-195C.,No. CIV-73-414C,CIV-73-414C
• Citation: 721 F. Supp. 463
• Parties: UNITED STATES of America, Plaintiff, v. The CITY OF BUFFALO, et al., Defendants (Two Cases).
• Court: U.S. District Court — Western District of New York

721 F. Supp. 463

UNITED STATES of America, Plaintiff, v. The CITY OF BUFFALO, et al., Defendants (Two Cases).

Nos. CIV-73-414C, CIV-74-195C.

United States District Court, W.D. New York.

September 5, 1989.

United States Dept. of Justice, Civ. Rights Div. (Richard S. Ugelow, Judith L. Mathis, of counsel), Washington, D.C., for plaintiff.

Cravath, Swaine & Moore (Paul C. Saunders, of counsel), New York City, for plaintiffs-intervenors Afro-American Police Assn, Inc., et al.

Magavern & Magavern (Richard A. Moore, of counsel), Buffalo, N.Y., for plaintiff-intervenor Nat. Ass'n for the Advancement of Colored People, Inc.

Leonard F. Walentynowicz, Buffalo, N.Y., for plaintiffs-intervenors Charles Flynn, et al., and Phillip Carcaci, et al.

William A. Price, Buffalo, N.Y., for plaintiffs-intervenors Elizabeth Kraebel, et al.

Samuel F. Houston, Corp. Counsel for the City of Buffalo (Michael B. Risman, of counsel), Buffalo, N.Y., for defendant City of Buffalo, et al.

CURTIN, District Judge.

In two interim orders dated August 9, 1989, the court issued its conclusions regarding the issues of whether the 50% interim hiring goals for minorities mandated by this court for the Buffalo Police and Fire Departments should be lifted and, if so, what provisional steps regarding hiring would be appropriate until a decision is made following a hearing or trial on the issue of whether the City of Buffalo ("City") has valid selection procedures in place. The interim orders were issued in order to allow the City to proceed with hiring and training new recruits for its fall classes in both departments. This order shall supplant those orders and constitute the court's final decision and order on these issues.

BACKGROUND

After finding that the City had engaged in an unlawful pattern and practice of employment discrimination against Blacks, Spanish-surnamed Americans and/or persons of Spanish language ("Hispanics"), and women in its Police and Fire Departments, see 457 F.Supp. 612 (W.D.N.Y.1978), modified and aff'd, 633 F.2d 643 (2d Cir. 1980), this court ordered the City to take a number of steps to remedy that discrimination and to ensure that it did not recur. Among those steps was the requirement that the City make 50% of its entry-level and/or police officer appointments and 50% of its firefighter appointments from the pool of qualified Black and Hispanic applicants. It was ordered that these hiring requirements or "goals" would remain in effect until

the minority composition of the uniformed personnel of the Police Department and Fire Department is at least equal to the percentage of minorities in the labor force of the City of Buffalo according to the most recent census, or until this Court has found, after a hearing, that all proposed selection procedures for entry level and/or police officer and firefighter positions have been validated in accordance with the Uniform Guidelines on Employee Selection Procedures, 43 F.R. 38290 et seq. (August 25, 1978), and that no further interim goals are appropriate. Nothing herein shall preclude plaintiff United States from advocating the continuance of the interim goals on the basis that the continuing effects of past discrimination have not been eliminated.

Final Decree and Order of November 23, 1979, at ¶ 7.¹

The City now claims that the minority composition of each department sufficiently reflects the minority composition of Buffalo's civilian labor force so as to justify terminating the 50% or "one-for-one" interim hiring requirements. By affidavits dated June 7, 1989, and June 9, 1989, the City has represented that Blacks and Hispanics now comprise, respectively, 19.2% and 5.9% of the Police Department,² and 20.7% and 3.8% of the Fire Department.³ Minorities thus comprise a total of 25.1% of the Police Department, and a total of 24.5% of the Fire Department.⁴ 1980 census figures supplied by the parties indicate that Blacks and Hispanics comprise, respectively, 23.2% and 2.0% of Buffalo's civilian labor force, for a total of 25.2%.

The United States agrees that the 50% goals should be terminated, arguing that the City has "substantially complied" with that part of the court's remedial order. The United States also argues, however, that the City has not established that it has valid selection procedures in place, and, therefore, that the court should enforce new interim hiring requirements until the City does so in order to ensure that the City's hiring practices do not adversely impact upon Blacks, Hispanics, and women.

Termination of the 50% hiring goal for the Police Department is opposed by plaintiffs-intervenors Afro-American Police Association, et al. ("AAPA"), and plaintiff-intervenor National Association for the Advancement of Colored People ("NAACP"). They argue that the 1979 remedial order must be read as requiring that the 50% hiring goal will not be lifted until the percentages of Blacks and Hispanics in the department is "at least equal to" the percentages for each group in the municipal labor force, and that the goal thus should not be lifted until the percentage of Blacks in the department reaches 23.2%. At a hearing held on July 21, 1989, the AAPA also presented testimony from an expert in the field of census figures and demography, Eugene Ericksen, in support of its argument that the 1980 census does not accurately reflect the percentage of Blacks in Buffalo's civilian labor force. Termination of the 50% hiring goal for the Fire Department is opposed by the NAACP for the same reason it opposes lifting of the goal for the Police Department — the percentage of Blacks in the department is not "at least equal to" the percentage of Blacks in the municipal labor force.

With regard to the Police Department, plaintiffs-intervenors Charles Flynn, et al. ("Flynn-Intervenors"), support lifting of the 50% interim hiring goal. Indeed, they claim that two recent decisions by the United States Supreme Court, City of Richmond v. J.A. Croson Co., ___ U.S. ___, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), and Wards Cove Packing Co. v. Atonio, ___ U.S. ___, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), dictate that the need for any interim hiring goals was eliminated when the percentage of minorities in the Police Department reached the percentage of minorities that were in the City's labor market at the time the court issued its original liability decision in 1978. Thus, they argue, the use of interim hiring goals since that time has gone beyond the relief that was necessary to redress the discrimination found by the court in 1978. They argue that new findings of discrimination would be necessary in order to justify the continued use of hiring restrictions. These intervenors complain that the court's remedial decree has benefitted many individuals who have never been required to establish that they were victimized by racial or gender-based discrimination, and that, in light of these recent Supreme Court decisions, it is illegal to select them over others for employment through the use of preferential hiring ratios. With regard the Fire Department, plaintiffs-intervenors Phillip Carcaci, et al. ("Carcaci-Intervenors"), make essentially the same arguments. Among other things, both sets of intervenors request that the court order that they be appointed to the next vacancies occurring in the respective departments to which they have applied.

DISCUSSION AND FINDINGS

a) The 50% Minority Hiring Goals

After carefully considering the arguments and evidence presented, the court has concluded the 50% interim hiring goals should be lifted. Contrary to the arguments of the AAPA and the NAACP, the court's 1979 remedial decree does not require that the 50% hiring goals remain in place until the percentages of Blacks and Hispanics in each department is at least equal to the percentages for each of those groups in the municipal labor force. The court is satisfied that the respective proportions of Blacks and Hispanics now constituting the uniformed personnel in both the Police Department and the Fire Department sufficiently approximate the respective proportions of these groups in the City's labor force so as to satisfy the purpose of that portion of the 1979 remedial decree. In addition, the court notes that, although the percentage of Blacks in each department is slightly less than the percentage of Blacks in the general labor force, the new interim hiring requirements established herein will most likely increase the percentage of Blacks in both departments before a determination is made next year regarding the validity of the City's selection procedures.⁵

The court has thus concluded that the substantial compliance achieved by the City is sufficient to warrant lifting the interim hiring requirements imposed by the court in paragraphs 3 and 4 of the 1979 remedial order. As the United States Court of Appeals for the Second Circuit has noted, "the important thing is that the duration of such hiring quotas should be no longer than is necessary," 633 F.2d at 647, and the court believes that the time has come to remove the relatively demanding one-for-one hiring requirements and to focus on determining whether the City has valid selection procedures in place.

Although, as the AAPA argues, the 1980 census may have underestimated the number of minorities in the civilian labor force, the evidence and arguments presented at the hearing have not convinced the court that the potential problems in this regard presented by the 1980 census justify disregarding those figures, or that similar problems will not result after data for the 1990 census is collected. Furthermore, the 1979 remedial order stated that the yardstick used by the court would be "the most recent census," and the court has determined that, in fairness to the City, the potential problems outlined by the AAPA do not justify the potentially extended delay that could occur while the 1990 data are compiled and analyzed.

b) New Interim Hiring...