Williams v. City of New Orleans, La.

• Decision Date: 16 December 1982
• Docket Number: No. 82-3435,82-3435
• Parties: 30 Fair Empl.Prac.Cas. 1061, 31 Fair Empl.Prac.Cas. 464, 30 Empl. Prac. Dec. P 33,274 Larry WILLIAMS, et al., Plaintiffs-Appellants, v. The CITY OF NEW ORLEANS, LOUISIANA A Municipal Corporation, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 987

694 F.2d 987

30 Fair Empl.Prac.Cas. 1061,

31 Fair Empl.Prac.Cas. 464,

30 Empl. Prac. Dec. P 33,274

Larry WILLIAMS, et al., Plaintiffs-Appellants,

v.

The CITY OF NEW ORLEANS, LOUISIANA A Municipal Corporation,

et al., Defendants- Appellees.

No. 82-3435.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1982.

Opinion on Rehearing and Rehearing

En Banc Feb. 14, 1983.

O. Peter Sherwood, New York City, for plaintiffs-appellants.

Dale C. Wilks, New Orleans, La., for intervenors Perez etc.

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

Gilbert R. Buras, Jr., City Atty., Galen Brown, Asst. City Atty., New Orleans, La., for all defendants-appellees.

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

Ralph D. Dwyer, Jr., New Orleans, La., for Civil Service Comn.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, REAVLEY and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiffs appeal from the district court's denial of approval to a proposed consent decree in this Title VII employment-discrimination case. 543 F.Supp. 662 (E.D.La.1982). Such denial has been held to be an appealable order. Carson v. American Brands, Inc., 450 U.S. 79, 84 & n. 14, 101 S.Ct. 993, 998 & n. 14, 67 L.Ed.2d 59 (1981). The proposed consent decree terminating the class action was negotiated between the defendants (the City of New Orleans, the Civil Service Commission, and various city officials) and the plaintiffs--a class of black applicants and members of the New Orleans Police Department who complained of racially discriminatory policies in the selection, training, and promotion of city police officers.

We need not here repeat the detailed analysis by the district court of the proposed consent decree and of the objections of various intervenors. ¹ It is sufficient here to say that the court approved all aspects of the lengthy and comprehensive plan for redressing past discriminatory practices against blacks, except one. The court withheld approval of the entire consent decree, only because of a provision requiring promotion to officer grades of one black for every white policeman until black officers constituted 50% of all ranks of the Police Department, because the court felt that this provision unreasonably affected white, female, and Hispanic police officers in their career aspirations. We conclude that, under the existing jurisprudence, the district court erred in concluding that the quota governing future promotions was not an appropriate or necessary remedy to afford complete relief to the plaintiff class of black officers and that the minimum twelve years duration of the plan aggravated its unreasonableness. We likewise find that the district court was clearly erroneous in its factual finding that the target of fifty percent was unsupported by evidence in the record. Accordingly, we reverse, and we remand to the district court with directions that it enter the consent decree.

Factual Overview

The provision of the proposed 34-page consent decree found by the district court to be objectionable was with regard to "promotions" in the decree's Section VI:

Defendants shall approve and make promotions of black officers on an accelerated basis pursuant to the formula set forth below until black officers constitute fifty percent (50%) of all ranks within the NOPD at which time this Decree shall cease to be operative.

* * *

* * *

C. Future Promotions. After paragraph VI-B has been accomplished [a measure providing temporary relief by creation of additional supervisors], the Defendants will approve and promote qualified black and white officers on a 1-1 ratio as vacancies arise. At no time must blacks be promoted on this basis if to do so will result in a proportion of black officers in the rank of sergeant, lieutenant, captain or major, separately considered, that exceeds the proportion of blacks then occupying the rank of police officer. The initial promotion to each rank made pursuant to this subparagraph shall go to a white officer.

This provision was proposed in the light of the following statistics as to the composition of the police department on August 28, 1981. There were 1007 non-ranked police officers (736 white, 229 black, 42 other), but in the upper ranks from sergeant to major (in addition to 12 white male desk sergeants) the racial composition broke down as follows:

Sergeant, 5 black, 171 white, 11 other--total 187;

Lieutenant, 2 black, 63 white, 2 other--total 67;

Captain, 0 black, 20 white, 3 other--total 23;

Major, 0 black, 5 white, 1 other--total 6.

Without detailing the evidentiary showing, which indicates New Orleans to have over a 50% black population and which affords a substantial basis for finding that the qualified pool of black applicants for these ranks should reasonably have produced at a minimum, if promotion were made on a nondiscriminatory basis, between 25% and 40% blacks in these ranks by 1980, we note only the miniscule percentage (about 3%) of blacks in the sergeant and lieutenant ranks, with no blacks serving as captain or major. We note further the district court's finding, in approving other portions of the proposed consent decree, that the police department's past hiring, training, and other policies could reasonably be said to have resulted in discrimination against black applicants and black policemen. By way of prelude, we note also that, upon a showing of this nature, "[a] consent decree may properly include provisions requiring the defendants to take affirmative action rectifying the effects of past discrimination." United States v. City of Miami, 664 F.2d 435, 442 (en banc) (Rubin, J., plurality), 461 (F. Johnson, J., dissenting, agreeing as to this) (5th Cir.1981).

Issues

In urging that the district court erred in rejecting the proposed consent decree, the plaintiffs principally argue: (1) that the standard of review of the rejection of a consent decree ending long discriminatory employment practices requires the appellate court to make a de novo determination, rather than to apply an abuse of discretion standard; and (2) that even if the latter standard applies, we should hold that the district court abused its discretion in rejecting the consent decree (a) because it committed clear legal error insofar as it based its holding on a legal conclusion that the use of promotion quotas (affirmative action) was inappropriate to remedy past discriminatory effects under the facts of this case and (b) because it was clearly erroneous in its finding that the target of 50% black representation was unsupported by evidence in the record. The intervenors-appellees (see note 1 supra) urge, to the contrary, that no abuse of discretion is reflected by the district court's conclusion that the promotion quota unreasonably affected the rights of third persons, i.e., whites, women, and Hispanic police officers.

I. Standard of Review of the District Court's Rejection

Title VII consent decrees should be viewed in light of Congress' determination that voluntary compliance is a preferred means of enforcing nondiscriminatory employment policies and practices. City of Miami, supra, 664 F.2d at 442. Because a consent decree, more than a contractual settlement between the parties, has the binding force of a judgment and reaches into the future and has continuing effect by virtue of its injunctive provisions, however, the district court has an active role in deciding whether or not to enter the decree. It must determine that the proposed settlement "represents a reasonable factual and legal determination based on the facts of record.... If the decree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor proscribed." City of Miami, supra, 664 F.2d at 441 (emphasis added).

In Title VII litigation, consent decrees enjoy a presumption of validity. United States v. City of Alexandria, 614 F.2d 1358, 1359, 1362 (5th Cir.1980). In practice, district courts have generally approved proposed settlements, and the appellate court has rarely reversed, indicating that a reversal is appropriate only where the reviewing court finds that the trial court has abused its discretion in determining that the decree is not unlawful, unreasonable, or inequitable. United States v. City of Jackson, 519 F.2d 1147, 1151 (5th Cir.1975); see also City of Alexandria, supra, 614 F.2d at 1361 & n. 6.

In urging de novo review, the plaintiffs rely, however, upon City of Alexandria, where this court undertook de novo review of the district court's rejection of a consent decree, with terms similar to the present, entered into between the Department of Justice and a Louisiana municipality. Nevertheless, under the principle set forth in the cited decision, we find that de novo review, that would permit this court to make its own factfinding independent of the district court's evaluation, is not appropriate under the present facts. In City of Alexandria, we cautioned: "We do not carry the mistaken notion that heightened review of district court refusals to enter consent decrees will resolve the almost intractable problems [in evaluating affirmative action] consent decrees," Id. at 1362. We further observed: "The degree of appellate scrutiny must depend on a variety of factors, such as the familiarity of the trial court with the lawsuit, the stage of the proceeding at which the settlement is approved, and the types of issues involved." Id. at 1361.

In the present case, the district court had great familiarity with the parties and issues and had heard testimony from the parties and intervenors during the four-day hearing, unlike the trial court in City of Alexandria. No parties there objected to the consent decree. Therefore, the appellate court reviewed de novo the relatively uninformed decision of the district court to disapprove sua sponte the decree. Further, distinguishably from the present case, in City...