Williams v. City of New Orleans, Civ. A. No. 73-629.

• Decision Date: 11 June 1982
• Docket Number: Civ. A. No. 73-629.
• Citation: 543 F. Supp. 662
• Parties: Larry WILLIAMS et al. v. CITY OF NEW ORLEANS et al.
• Court: U.S. District Court — Eastern District of Louisiana

543 F. Supp. 662

Larry WILLIAMS et al. v. CITY OF NEW ORLEANS et al.

Civ. A. No. 73-629.

United States District Court, E. D. Louisiana.

June 11, 1982.

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O. Peter Sherwood, New York City, Ronald Wilson, New Orleans, La., for plaintiffs.

Ralph Dwyer, New Orleans, La., for Civil Service Com'n.

Gilbert Buras, New Orleans, La., for City of New Orleans.

Patrick Hugg, New Orleans, La., for Larry Lombas, et al.

Ronda Lustman, Lynne Wasserman, New Orleans, La., for Cindy Duke, et al.

Sidney Bach, New Orleans, La., for Martin Venezia, et al.

Dale C. Wilks, New Orleans, La., for Horace Perez, et al.

SEAR, District Judge.

Larry Williams and twelve other black New Orleans police officers and applicants brought this action in 1973, seeking redress for alleged employment discrimination by the City of New Orleans, the New Orleans Civil Service Commission (CSC) and various municipal and CSC officials. On behalf of a class of similarly situated persons, the plaintiffs asserted that the defendants had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981,¹ and the Thirteenth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983.² After a period of initial activity, and an interlocutory appeal, progress in the case stalled and it was dismissed for failure to prosecute on August 25, 1978. Upon application by the plaintiffs, it was reopened and eventually readied for trial on the merits. At my behest, during pretrial proceedings the parties pursued settlement discussions, which culminated in an agreement announced on October 13, 1981, the day the trial was scheduled to commence. Now before me is a joint motion of the parties seeking court approval of a proposed consent decree incorporating this agreement as well as objections by class members and nonblack police officers who were granted leave to intervene to challenge the decree.

I. The Decree and its Opponents

The 33-page proposed decree governs virtually every phase of an officer's employment by the New Orleans Police Department (NOPD). Its most significant provisions pertain to recruiting, hiring, training, and promotion standards and procedures.

Recruitment. Article II of the decree calls for an intensified effort by the defendants to recruit black officers. As part of this commitment, the defendants are obligated specifically to send black officers on recruiting missions to local schools and community gatherings; establish centers in black neighborhoods to receive applications; encourage incumbent black officers to recruit qualified blacks; assign black officers as troubleshooting "buddies" to guide "minority"³ applicants through the application process; shorten the application process; and train recruiting personnel to be familiar with application and selection procedures.

Hiring. The decree requires that the defendants develop new entry level selection procedures, as described in Article IX. It further mandates that the City "adopt measures which, as far as is feasible, will assure that over the course of a calendar year the proportion of blacks who graduate from the police academy will at least meet the proportion of blacks who pass the written entry level examination for the position of Police Recruit ...."

Police Recruit Training. Article IV of the decree commits the City to "make all reasonable efforts" to assist all recruits and probationary officers in resolving difficulties. Among the measures implementing this pledge are good faith endeavors to assure the availability of black and white tutors, establishment of regular office hours for police academy instructors, institution of a "buddy" system for black recruits similar to the arrangement established for applicants, and assignment of at least four black officers to instructor positions at the academy. Additionally, the City is to create an "Academy Review Panel" composed of experienced officers, half of whom must be black. Every decision to dismiss or "recycle" a recruit must be submitted to the review panel for its approval. To ensure its independence, the panel is to report directly to the Superintendent of Police. Finally, Article IV forbids the use of general intelligence tests at the academy, and bars officers who have been the subject of repeated complaints of citizen mistreatment from serving as police instructors.

Subclassification of Officers. The decree provides that the defendants may proceed with their plans to create subclassifications of police officers, designated Police Officer I, II, III and IV. However, it specifies the maximum length of service that may be required as a condition for eligibility for each class — two years for Police Officer II, four years for Police Officer III, and six years for Police Officer IV. Although the choice of individuals to occupy each class is left to the discretion of the City, in exercising that discretion the City must "adopt procedures which assure that the proportion of white officers who are selected for appointment to a given classification does not exceed the proportion of white officers who are eligible to be selected for that classification."

Promotions. Article VI requires that black officers be promoted to police supervisory positions — sergeant, lieutenant, captain and major — on an accelerated basis. It operates in two stages. First, the City agrees to create immediately 44 new supervisory positions, and to fill these positions with blacks.⁴ Thereafter, and until blacks constitute half of all ranks within the NOPD, vacancies in the supervisory ranks are to be filled by blacks and whites on a one to one ratio. However, a rank need not be filled on this basis whenever doing so would result in a greater proportion of blacks in that rank than in the rank of police officer.

Article VII of the decree calls for revision of the minimum qualifications to take a promotional examination for a supervisory rank. To be eligible for examination for sergeant a candidate must have three years experience as a police officer; for lieutenant five years experience as a police officer or sergeant; and for captain seven years experience in a police classification. Candidates for captain and lieutenant must also have appropriate training and one year of field unit experience as a lieutenant and sergeant, respectively. Successful completion of certified job related educational courses may be considered in lieu of one year of experience. Article VIII provides that officers promoted pursuant to the decree must complete the NOPD's customary probationary period, but specifies that any vacancy created by the failure of a black officer to complete the probationary period must be filled by a black officer.

New Selection Procedures. Article IX of the decree requires the CSC to develop, in consultation with a psychometrician designated by the plaintiffs, new selection procedures for hiring and promotion. It mandates that any item on a test given to police recruits with a "statistically significant adverse impact against blacks" be eliminated. In promotions, a written examination is to be used as a qualifying measure, and is to be as "content valid as feasible." If a written promotional examination results in "adverse racial impact against blacks," the decree requires that the examination be investigated for unfairness. If, under scrutiny, the tests are judged to be unfair, or "if it is otherwise appropriate, a separate frequency distribution may be calculated and applied for blacks and whites." The test results are to be used to qualify candidates for participation in an oral assessment center, the findings of which place candidates in two to five groups of descending scores.

Miscellaneous. The proposed decree reaffirms the defendants' present rule that applicants must be domiciled in Orleans Parish before hiring. Likewise, no officer is eligible for promotion unless domiciled in Orleans Parish, except in individual cases where the residency requirement was waived. The decree also prohibits layoffs in the supervisory ranks, commits the defendants to review certain claims for reinstatement, establishes a $300,000 backpay fund for distribution to the plaintiff class, awards costs and attorneys' fees to the plaintiffs, and imposes extensive reporting obligations on the defendants. The decree expires when blacks constitute half of all ranks within the NOPD.

Third parties first began to assert interests in this litigation several months before the settlement was announced. On January 19, 1981, a week after a stipulation by the parties that no vacancies in the ranks of lieutenant and sergeant would be filled from existing promotional registers, Martin Venezia and thirteen other white officers on the sergeant promotional register sought leave to intervene.⁵ On October 13, 1981, the day the trial was scheduled to begin, Horace Perez and three other Hispanic-American officers, on behalf of all Hispanic-American officers on the NOPD, moved to be joined as parties under Rule 19 of the Federal Rules of Civil Procedure. A similar motion was filed on November 2, 1981 by Larry Lombas, a white officer, on behalf of approximately 600 officers objecting to the proposed consent decree. Finally, a fourth motion for joinder or leave to intervene was filed by Cindy Duke and two other female NOPD officers, on behalf of all female officers, claiming that the proposed settlement would impair their employment interests.

Following a hearing on the motions by the Perez, Duke and Lombas groups and on a motion for stay by the Venezia group, I permitted all four groups to intervene for the limited purpose of challenging the lawfulness and fairness of the proposed consent decree. I also announced that any NOPD officer would be allowed to file written objections to the decree. Including the...