Van Aken v. Young

• Citation: 541 F. Supp. 448
• Decision Date: 08 June 1982
• Docket Number: Civ. A. No. 77-72443.
• Parties: Neal VAN AKEN, Ronald G. Baranowski, Eric Barterian, Thomas Boland, Gary Britt, Scott Brooks, David Brumm, Dennis Campbell, Alan Cauchi, Michael R. Chartier, James Cichocki, Steve Cleland, Kenneth P. Gerometta, Dennis Girardin, Paul H. Grimm, Jack Hansen, David B. Jones, Michael Kovalcheck, Jeffrey D. Kramer, Michael Leskie, John Lis, Keith Loomis, David W. Lowe, James J. MacDonald, Thomas W. Melchior, Stephen R. Mirch, George Orzech, Dennis M. Palm, Patrick H. Payne, Charles Pinkston, Andrew Rushford, Jr., Mark Stelzer, George L. Talbot, Jr., James E. Todd, Carl Towne, Edward J. Tujaka, Jr., David M. Victor, and Alan Syrzykowski, Plaintiffs, v. Coleman A. YOUNG, individually and in his capacity as Mayor of the City of Detroit; Denise Lewis, individually and in her official capacity as Personnel Director of the City of Detroit; Jacob Sobieraj, Shirley Robinson Hall, Morris Hood, Sr., David Kerwin, and James Lewis, individually and in their official capacity as members of the Civil Service Commission of the City of Detroit; and City of Detroit, a municipal corporation, Defendants.
• Court: U.S. District Court — Western District of Michigan

541 F. Supp. 448

Neal VAN AKEN, Ronald G. Baranowski, Eric Barterian, Thomas Boland, Gary Britt, Scott Brooks, David Brumm, Dennis Campbell, Alan Cauchi, Michael R. Chartier, James Cichocki, Steve Cleland, Kenneth P. Gerometta, Dennis Girardin, Paul H. Grimm, Jack Hansen, David B. Jones, Michael Kovalcheck, Jeffrey D. Kramer, Michael Leskie, John Lis, Keith Loomis, David W. Lowe, James J. MacDonald, Thomas W. Melchior, Stephen R. Mirch, George Orzech, Dennis M. Palm, Patrick H. Payne, Charles Pinkston, Andrew Rushford, Jr., Mark Stelzer, George L. Talbot, Jr., James E. Todd, Carl Towne, Edward J. Tujaka, Jr., David M. Victor, and Alan Syrzykowski, Plaintiffs, v. Coleman A. YOUNG, individually and in his capacity as Mayor of the City of Detroit; Denise Lewis, individually and in her official capacity as Personnel Director of the City of Detroit; Jacob Sobieraj, Shirley Robinson Hall, Morris Hood, Sr., David Kerwin, and James Lewis, individually and in their official capacity as members of the Civil Service Commission of the City of Detroit; and City of Detroit, a municipal corporation, Defendants.

Civ. A. No. 77-72443.

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

June 8, 1982.

COPYRIGHT MATERIAL OMITTED

Robert L. Ziolkowski, Detroit, Mich., for plaintiffs.

Sylvester Delaney, Deputy Corp. Counsel, William Dietrich, Frank W. Jackson, James C. Zeman, Asst. Corp. Counsel, Detroit, Mich., for defendants.

OPINION

GILMORE, District Judge.

For more than a century, the City of Detroit's Fire Department was, for all practical purposes, the private preserve of white males. No black even served in the Department until 1938, and until the 1970's black representation was minimal. Blacks at the upper level of the Department were nonexistent, as were female fire fighters.

The plaintiffs in this lawsuit, 38 white male applicants for positions as fire fighters, challenge the voluntary affirmative hiring practices of the City of Detroit. The outcome of the suit turns on whether the defendants can pass over white male applicants in favor of qualified minority and women applicants where a proper body has made the determination that a significant course of past discriminatory conduct justified out-of-rank order hiring of minorities and women. The answer is yes.

In 1977, each of the plaintiffs was placed on an eligibility roster in rank order based on his performance on various hiring exams. Each of the plaintiffs was passed over in favor of an allegedly less qualified minority person or woman, all of whom were qualified for hire. Some of the plaintiffs were eventually hired, and their claims are limited to earlier seniority dates and back pay.

Plaintiffs' action is brought under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, 42 U.S.C. §§ 1981 and 1983, and Title VI and VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Plaintiffs also maintain a state claim resting upon the Elliott-Larsen Civil Rights Act, M.C.L.A. § 37.2101 et seq. They claim as to Title VII and § 1981 that a prima facie case has been made under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and that a pattern and practice of discriminatory conduct has been proved. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). They therefore claim that it is the defendants' burden of proof to show that the nonselection of each plaintiff was attributable to legitimate nondiscriminatory reasons.

They further claim that, even if the out-of-rank order hiring was legitimately based upon prior discrimination, the affirmative hiring plan was unreasonable in that it unnecessarily impacted upon the rights of innocent white applicants and was aimed at future gains in black population. Valentine v. Smith, 654 F.2d 503 (8th Cir. 1981). As to Title VI and the Equal Protection claims, plaintiffs contend that the out-of-rank order hiring, along with other acts by the defendants, manifested an intent to discriminate against white male applicants unjustified by any past discrimination. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).¹

Defendants respond that race and sex conscious hiring, authorized by the Civil Service Commission, was based upon the Commission's finding of past discrimination and, therefore was a legitimate attempt to remediate. They further claim that statistical proofs, which demonstrate more than three decades of gross disparity in black and women hiring remain entirely unexplained and compel a finding by this Court of past intentional discrimination by the defendants. The defendant City concedes that it discriminated against blacks and women historically. That admission, however, must be viewed very carefully in light of its benefit to the defendant in this litigation. It is not likely that any minority individuals could now come forward and recover damages on the basis of the admitted discrimination. Nevertheless, the City's admission should be accorded some weight in view of the strong possibility that the City could be subject to court orders requiring expensive and continuous measures to remedy past wrongs.

I

This case, once again, confronts the Court with the deplorable legacy of race discrimination in our society. From 1938 through 1968 approximately 50 black males and no women were hired in the Fire Department, while in the same period at least 2047 whites were hired. The testimony of Mark Frieman, defendant's expert, showed that at no time in the years from 1938 through 1968 did the number of black hires even approximate the number that would have been hired assuming a random nondiscriminatory selection process.

From 1940 through 1949 no black was hired, while the black portion of the labor pool moved from 6.9 percent to 13.2 percent, and 300 fire fighters were hired in 1947 alone. In 1961, when the black portion of the labor pool reached 24.6 percent, 62 white males were hired and no blacks. In 1968, 47 white males were hired and four black males.

In an effort to justify the disparity in black hires, plaintiffs offered several explanations, including the contention that blacks did not like the 24 hour shifts nor the low wages. Charles A. Myers, a witness for plaintiffs, who worked in the Personnel Department of the City of Detroit from 1934 until 1965, when he held its top position, testified that he worked very hard with the Urban League from 1948 forward to promote black hiring. He stated that few blacks ever applied, and that they did not like the low wages and shift work as compared to private industry. He further opined that the job was more attractive to whites because of family relationships within the Department, which seemed to advertise the job by word of mouth. He also stated that minority hiring was much better in all other City departments.

Plaintiffs also attempted to draw support from the testimony of John T. King, an employee of the Fire Department for 25 years and presently an administrative assistant to the Department. He testified that he took the written test along with six or seven other blacks and that five were hired in 1956. Because of this, plaintiffs claim that the selection process historically did not have an adverse impact upon blacks.

Other witnesses also referred to difficulty in attracting blacks to the Department, but most of them did not draw conclusions supportive of plaintiffs' claims. Even Myers' testimony undercut plaintiffs' case for he testified that the word was out that not many blacks were being hired in the Fire Department, and admitted that wages in the Fire Department were much better than wages paid in many unskilled jobs and better than many other City departments. It is clear that the wages in the Fire Department were higher than most wages paid in unskilled jobs, and that wages in the Fire Department were relatively higher than wages enjoyed by many blacks. Furthermore, there is no explanation as to the relative unsuitability of blacks for 24 hour shift work.

On the other hand, many witnesses testified as to discriminatory practices over the years in hiring in the Detroit Fire Department. Witness Samuel Dixon, a Chief of the Fire Department and a black, who became a member of the Department in 1952, recounted how he had not been allowed to sleep on a bunk that might be used by whites on the other shifts, whereas it was the custom of the whites to share bunks from shift to shift. He cited many other instances of discrimination against him in the Fire Department, including one instance where he found out he was not allowed to work on the same shift with another black on the few occasions in which such an assignment might come up.

Robert Walter, who served in the Personnel Department from 1940 until 1981, most recently as Director of the Department, testified that the written exam was the most significant barrier to black hiring. The written exam has been used every year for hiring since 1936. Mr. Walter also testified that the personal interview screened out a higher proportion of black applicants. He further stated that often an eligibility list would only be used for one year, and thus only the top portion of the list was ever used for hiring.

Witness King testified that, in 1977, 32 percent of all whites in the Fire Department had a father, uncle, or brother-in-law in the Department. He emphasized that invariably whites were the first to get applications, and that this was important because, where applicants had the same score, the time of application served as a tie breaker. He testified that as recently as the 1977 hiring period relatives of white employees stayed overnight in the Fire Academy to receive the first applications. He...