Vogel v. City of Cincinnati
| Decision Date | 13 March 1992 |
| Docket Number | No. 91-3474,91-3474 |
| Citation | 58 Fair Empl.Prac.Cas. (BNA) 402,959 F.2d 594 |
| Parties | 58 Fair Empl.Prac.Cas. (BNA) 402, 58 Empl. Prac. Dec. P 41,320, 60 USLW 2579 Richard VOGEL, Appellant, v. The CITY OF CINCINNATI, et al., Appellees, the Sentinel Police Association, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William S. Wyler (argued), Donald B. Hordes, Donna M. Bergmann, and Schwartz, Manes & Ruby (briefed), Cincinnati, Ohio, for appellant Vogel.
Mark C. Vollman (argued), Fay D. Dupuis, City Solicitor, Julie F. Bissinger, Assistant City Solicitor, and Richard H. Castellini, City Solicitor's Office for the City of
Cincinnatti (briefed), Cincinnati, Ohio, for appellees City of Cincinnati, Ohio, et al.
Alphonse A. Gerhardstein (argued) and Laufman, Rauh & Gerhardstein (briefed), Cincinnati, Ohio, for intervenor-appellee Sentinel Police Association.
Before: KEITH, RYAN and TIMBERS, * Circuit Judges.
Appellant Richard Vogel appeals from a summary judgment entered April 16, 1991, in the Southern District of Ohio, Carl B. Rubin, District Judge, in favor of appellees City of Cincinnati, et al., in an action commenced by Vogel to obtain damages resulting from the Cincinnati Police Division's affirmative action hiring policy.
The City adopted the affirmative hiring policy pursuant to a consent decree entered August 13, 1981. This settled an action commenced by the Department of Justice charging the City with engaging in hiring and promoting practices that discriminated against blacks and women.
On appeal, Vogel, a white male, contends that the City has gone beyond the scope of the consent decree in administering its affirmative action policy; or, in the alternative, that the City's affirmative action policy violates the equal protection clause of the Fourteenth Amendment.
We affirm.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
In 1980 the Department of Justice, on behalf of the United States, commenced an action against the City of Cincinnati, the Cincinnati Police Division and the Cincinnati Civil Service Commission (collectively, the City) alleging that they had engaged in hiring and promoting practices that discriminated against blacks and women in violation of Title VII. The Fraternal Order of Police, the collective bargaining representative of the police officers of Cincinnati, intervened in the action. After extensive negotiations between all parties, a consent decree was entered August 13, 1981.
The consent decree provided that its purpose was to remedy any disadvantage to blacks and women that may have resulted from past discrimination so that equal employment opportunity would be provided for all. It established a long term goal of having the proportion of blacks and women in the sworn ranks of the Cincinnati Police Division approximate the proportion of qualified blacks and women in Cincinnati's work force. In order to reach that goal, the decree adopted as an interim goal the hiring of qualified black and female officers in at least the percentages that they represented in the 1980 recruit class (34% blacks, 23% women). These percentages resulted from the City's recent efforts to recruit more blacks and women for its police force. The consent decree specifically provided, however, that:
"nothing herein contained shall be interpreted as requiring the City defendants to hire unnecessary personnel, or to hire, transfer or promote a person who is less qualified over a person who is more qualified on the basis of properly validated employment selection devices within the meaning of the [Uniform Guidelines]."
Moreover, the decree provided that it would terminate upon a showing that its long term goal had been achieved.
In order to implement the decree, the City adopted a new procedure for hiring police recruits. Candidates initially are subjected to a medical examination, a psychological evaluation, a physical ability test, and a background investigation. Candidates then are given a written examination which has been validated to determine minimum qualifications for police recruits. Those candidates achieving a score of at least 60% on the examination are placed on the Open Eligible List. When selecting from the Open Eligible List, the City accords preference to qualified blacks and women as necessary to meet, if possible the interim goal established by the consent decree of having recruit classes that are 34% black and 23% women.
As a result of this affirmative action policy administered by the Cincinnati Police Department pursuant to the consent decree, Vogel was not selected as a member of the recruit class that began training in October 1989. Although he was appointed to a recruit class within several months thereafter, he commenced this action against the City seeking back pay, retroactive seniority and other benefits for the period that he was denied a position with the police force due to the hiring policy of the City.
In support of his claim Vogel contends that the City has gone beyond the terms of the consent decree by implementing what is essentially a quota system, i.e. taking a predetermined percentage of blacks and women into each recruit class. Specifically, he contends that the City's policy is not in accord with that part of the decree which provides that "nothing herein shall be interpreted as requiring the City to hire unnecessary personnel ... or a person less qualified over a person who is more qualified on the basis of properly validated employment selection devices...." Vogel contends that, since the City's policy resulted in the City hiring candidates with lower written examination scores than his, the City violated the consent decree. In the alternative, Vogel contends that, if in fact the Police Department's hiring policy is authorized by the consent decree, then the consent decree violates the equal protection clause of the Fourteenth Amendment.
Oral argument in the instant case took place in our Court on November 5, 1991. On November 21, the Civil Rights Act of 1991 (1991 Act or the Act) was enacted. As a preliminary matter, therefore, we must address whether the 1991 Act is to be applied retroactively to the instant case. We hold that the 1991 Act does not govern the instant case which involves conduct that occurred before the 1991 Act became law. We therefore shall not attempt to interpret the substantive provisions of the 1991 Act; rather, we shall apply the law that was in effect prior to the 1991 Act.
We hold that Vogel, who was not a party to the consent decree, lacks standing to challenge the City's interpretation of the decree. Moreover, we hold that, although Vogel does have standing to challenge the constitutionality of the City's policy pursuant to the decree, the affirmative action policy adopted by the City pursuant to the consent decree does not violate the equal protection clause of the Fourteenth Amendment.
We affirm the summary judgment of the district court dismissing Vogel's claim against the City.
The Supreme Court has not yet settled the question of whether, absent clear legislative intent, a congressional enactment should be applied retroactively or prospectively. In Bradley v. Richmond School Board, 416 U.S. 696 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Court articulated the proposition that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 711., 94 S.Ct. at 2016. In its more recent decision in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), however, the Court reiterated the longstanding principle that Id. at 208., 109 S.Ct. at 471. In Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), the Court recognized this "apparent tension" in its precedents, id. at 837, 110 S.Ct. at 1577, but it did not settle the issue since in Kaiser there was clear evidence of congressional intent; and "where congressional intent is clear, it governs." Id.
The 1991 Act, on its face, does not make clear whether it should be applied retroactively or prospectively. Section 402 of the Act states that "[e]xcept as otherwise specifically provided, this Act and the Amendments made by this Act shall take effect upon enactment." This language could be construed to mean either that the Act should be applied to any charge or case pending on or after the date of enactment, or that it should be applied only to conduct occurring after that date. The legislative history does not provide any guidance on this question. Senators expressed conflicting views. For example, Senator Danforth stated that the Act was to apply prospectively only, 137 Cong.Rec. S15,483 (daily ed. Oct. 30, 1991), whereas Senator Kennedy expressed disagreement with that view. Id.
District courts construing the Act have split on the issue of whether it should be applied retroactively or prospectively. Compare Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991) () with Mojica v. Gannett Co., 779 F.Supp. 94 (N.D.Ill.1991) ().
In response to the uncertainty generated by the failure of Congress to specify whether the Act should be applied retroactively or prospectively, the Equal Employment Opportunity Commission, on December 27, 1991 issued a policy statement that it "will not seek damages under the Civil Rights Act of 1991 for events occurring before November 21, 1991." Generally, absent clear ...
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