US v. City of Warren

• Decision Date: 14 February 1991
• Docket Number: No. 86-CV-75435-DT.,86-CV-75435-DT.
• Citation: 759 F. Supp. 355
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF WARREN and City of Warren Police and Fire Civil Service Commission, Defendants.
• Court: U.S. District Court — Western District of Michigan

759 F. Supp. 355

UNITED STATES of America, Plaintiff, v. CITY OF WARREN and City of Warren Police and Fire Civil Service Commission, Defendants.

No. 86-CV-75435-DT.

United States District Court, E.D. Michigan, S.D.

February 14, 1991.

Michael Ricciuti, U.S. Dept. of Justice, Civ. Rights Div., Washington, D.C., L. Michael Wicks, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

Walter A. Jakubowski, City Atty., Warren, Mich., Walter B. Connolly, Jr., Detroit, Mich., James Hacker, Mount Clemens, Mich., for defendants.

OPINION

DUGGAN, District Judge.

This is a Title VII action¹ instituted in 1986 by plaintiff, United States of America ("Government"), against defendant, City of Warren ("Warren" or "City"). Presently before the Court are two motions: (1) the Government's renewed motion for partial summary judgment, and (2) Warren's renewed motion for summary judgment.²

I. Background

In 1958, Warren enacted a preapplication residency requirement relating to persons applying for police and firefighter jobs and other municipal jobs in the City. The residency requirement mandated that all persons who applied for City jobs had to have been residents of the City for at least one year prior to the time of their application.

In 1984, Warren rescinded its preapplication residency requirement as to police and fire applicants. In 1986, Warren rescinded the residency requirement as to all other municipal job applicants.

In 1986, the Government instituted the present suit against Warren. In its suit, the Government alleges that Warren's preapplication residency requirement violated Title VII and that Warren continues to violate Title VII with regard to its recruitment of blacks for municipal jobs.

At a hearing held in this Court in September, 1990, the Government and Warren agreed upon the following as being "issues" in the present lawsuit:

A). Did Warren violate Title VII by having a preapplication residency requirement prior to 1986?

B). Assuming Warren violated Title VII by having a preapplication residency requirement prior to 1986, did Warren's actions to eliminate that preapplication residency requirement, to eliminate eligibility lists, and to expand its recruitment render the issue issue "A" moot?

C). Assuming Warren violated Title VII and the issue is not moot, can a federal judge determine whether relief i.e., injunctions and make whole relief to victims of the Title VII violation is appropriate?

II. Summary Judgment

To warrant the grant of summary judgment under Fed.R.Civ.P. 56, the moving party must show that "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the party against whom the motion is offered fails to "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," then summary judgment under Rule 56 is appropriate. Id., 477 U.S. at 323-24, 106 S.Ct. at 2552-53. The moving party, however, bears the initial burden of informing the district court of the reasons for its motion, and identifying the absence of a genuine issue of material fact.³ Id., 477 U.S. at 323, 106 S.Ct. at 2553.

In determining whether there are issues of fact requiring a trial "the inferences to be drawn from the underlying acts contained in the affidavits, attached exhibits and depositions must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industries Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). Also, even though the basic facts may not be disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from such facts. See United States v. Diebold, Inc., supra; EEOC v. United Assoc. of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091 (6th Cir.1970).

The Court recognizes that the motion before it is an extraordinary remedy. However, this does not mean that summary judgment should be disfavored; it may be an appropriate avenue for the just, speedy and inexpensive determination of a matter. Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934 (6th Cir.1989).

III. Discussion

A. Did Warren violate Title VII by having a preapplication residency requirement prior to 1986?

In its present motion for summary judgment the Government argues that Warren's preapplication residency requirement violated § 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) in that the requirement caused Warren as an employer to, in the words of the statute, "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities." In other words, the Government is arguing that Warren's residency requirement had a disparate impact on (prospective) black job applicants for municipal positions in the City.

Warren, in its present summary judgment motion, argues that its preapplication residency requirement did not violate Title VII in that Warren did not use the requirement to disparately treat black job applicants. Indeed, Warren has expressly stated that, for purposes of its present motion and its defense against the Government's motion, it is not arguing "that the residency requirements did not have an adverse impact against blacks." Defendant's Supplemental Brief in Support of Renewed Motion for Summary Judgment and in Opposition to Plaintiff's Renewed Motion for Summary Judgment ("Warren's Supplemental Brief") at p. 6. Instead, Warren claims it "preserves" the arguments made in its original summary judgment motion that the residency requirement did not disparately impact blacks. Id., at p. 6, n. 2.

1. Applicable law

Through the course of several decisions the Supreme Court has set forth the appropriate standards for disparate impact claims under Title VII. These standards may be stated as follows:

The plaintiff in a disparate impact case must first establish a prima facie case of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Such a prima facie case will be established if the plaintiff shows that a facially neutral employment standard is discriminatory in effect in that it selects applicants for hire in a discriminatory pattern. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977). A plaintiff can make this showing by using statistical proof to make a comparison, in a case where race discrimination is alleged, "between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs...." Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2121, 104 L.Ed.2d 733 (1989). Also, "in cases where such labor market statistics will be difficult if not impossible to ascertain, ... certain other statistics — such as measures indicating the racial composition of `otherwise-qualified applicants' for at-issue jobs — are equally probative for this purpose." Id.⁴

Further, where a plaintiff is proceeding under a disparate impact theory, he/she must show by a preponderance of the evidence that the practice at issue "was the employer's standard operating procedure — the regular rather than the unusual practice." Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). Additionally,

A Title VII plaintiff does not make out a case of disparate impact simply by showing that, "at the bottom line," there is racial imbalance in the work force. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff's prima facie case in a disparate-impact suit under Title VII.

Wards Cove, 109 S.Ct. at 2124-25 (emphasis in original). In other words, the plaintiff must show the challenged practice caused the alleged disparate impact on a protected group. Id., 109 S.Ct. at 2124.

After the plaintiff has established a prima facie case of disparate impact, the case will shift to the employer who must come forth with a "justification" for the challenged practice. Id., 109 S.Ct. at 2125. "In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice." Id., 109 S.Ct. at 2126. However, "the burden of persuasion, ..., remains with the ... plaintiff." Id.

The "touchstone" of the business justification inquiry will consist of:

A reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification ... will not suffice, .... At the same time, though, there is no requirement that the challenged practice be "essential" or "indispensable" to the employer's business for it to pass muster; this degree of scrutiny would be almost impossible for most employers to meet, ....

Id.

If the employer meets its burden of production as to a business justification, the plaintiff may still prevail on his/her disparate impact claim if he/she "persuades the factfinder that `other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate hiring interests....'" Id. By demonstrating this, the plaintiff would, in effect, prove that the employer was using the challenged practice "`merely as a `pretext' for discrimination.'" Id. (quoting Albemarle...